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NORTH CAROLINA 



:.:««Jt*«>*w«M«ftf-: : 



REGISTER 



VOLUME 13 • ISSUE 17 • Pages 1375 - 1500 

March ly 1999 
IN THIS ISSUE 

Executive Order 
Voting Rights Letter 
Acuptincture Licensing Board 
I Administration 

Certified Public Accountant Examiners 

Commerce 

Environment and Natural Resources 

Health and Human Services 

Insurance 

Justice 

Labor 

Medical Examiners 

Nursing, Board of 

Pharmacy, Board of 

Revenue 

Transportation 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 2 7611- 7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



RECEIVED 

MAR 1 1999 

KATHRtNE R. EVERETT 
LAW LIBRARY 



This publication is printed on permanent, acid-free paper in compliance with G.S. 123-1 J. 13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of i^ 
components, consult with the agencies below. The bolded headings are typical issues which the give 
agency can address, but are not inclusive. 



Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. 



Office of Administrative Hearings 
Rules Division 
Capehart-Crocker House 
424 North Blount Street , *^' 
Raleigh, North Carolina 27601-2817 

contact: Molly Masich, Director APA Services 
Rubv Creech. Publications Coordinator 



(919)733-2678 
(919) 733-3462 FAX 

minasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

1 1 6 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.statejic.us 



Rule Review and Legal Issues 

Rules Review Commission : 
1307 Glenwood Ave., Suite b9 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



: »<» WK ^(^*»^*«^rtw«»^t«^^.>^X■>:■;■^>.■«»Jv>>»»»»^^ 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (9 1 9) 733-2578 

Raleigh, North Carolina 27611 (919) 715-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us 



Count>' and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Street' (919)715-2893 

Raleigh, North Carolina 27603 



contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13 



NORTH CAROLINA 
REGISTER 




II. 



III. 



IV. 



Volume 13, Issue 17 
Pages 1375 -1500 



March 1, 1999 



This issue contains documents officially filed 
through February 8, 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



VI. 
VII. 



VIII. 



IN THIS ISSUE 

EXECUTIVE ORDERS 

Executive Order 144 1375 

IN ADDITION 

Voting Rights Letter 1376 

RULE-MAKING PROCEEDINGS 

Environment and Natural Resources 

Marine Fisheries 1377 

TEMPORARY RULES 
Health and Human Services 

Blind/State Rehabilitation Council Commission 1378 - 1379 

Vocational Rehabilitation Services 1379-1380 

APPROVED RULES 1381 - 1475 

Administration 

Environmental Policy Act. North Carolina 

Indian Affairs. Commission of 

Purchase and Contract 

State Construction 
Commerce 

Departmental Rules 
Environment and Natural Resources 

Coastal Management 

Departmental Rules 

Environmental Health 

Environmental Management 

Marine Fisheries 

Parks and Recreation Area Rules 

Soil & Water Conservation Commission 

Water Pollution Control System Operators Cert Commission 

Wildlife Resources 
Health and Human Services 

Facilitv Services 

Medical Assistance 

Mental Health: General 

Vocational Rehabilitation 
Insurance 

Engineering and Building Codes Division 

Life and Health Division 
Justice 

Criminal Justice Ed & Training Standards 
Labor 

Retaliatorv' Emploxment Discrimination 

Wage and Hour 
Licensing Boards 

Acupuncture Licensing Board 

Certified Public Accountant Examiners 

Medical Examiners 

Nursing. Board of 

Pharmacy. Board of 
Revenue 

Corporate Income and Franchise Tax Division 

Departmental Rules 

Individual Income Tax Division 

Individual Income: Inheritance and Gift Tax Division 

License and Excise Tax Di\ ision 

Motor Fuels Tax Division 

Sales and Use Tax 
Transportation 

Transit. Rail, and Aviation 
RULES REVIEW COMMISSION 1476-1477 

CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1478 - 1487 

Text of Selected Decisions 

97OSP0I67 1488- 1500 

CUMULATIVE INDEX I 79 



Sonh Carolina Register is published semi-monthly for SI'^s per year h\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601 (ISSN 1 5200604) to mail at Periodicals Rates is pa:d at Raleigh. NC POSTMASTER Send Address changes to the \ nrih Curolnui Register. 
PO Drawer 27447. Ralei2h.NC 2761 1-7447 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safetv' 


EleclroKsis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


2"' 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Communitv Colleges 


Mortuary Science 


34 


24 


independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacx' 


46 






Phvsical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psycholog\ Board 


54 






Professional Engineers & Land Sur\eyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinap. Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 144 

FIRST IN AMERICA: A GOAL FOR NORTH 

CAROLINA'S SCHOOLS 

WHEREAS, the young people of North CaroHna must 
be educated and equipped to compete with anybody anywhere 
and capable of outwori<ing and outthinking our competitors 
across the nation and around the world in the 21" Century 
economy; and, 

WHEREAS, our children must start school healthy and 
ready to learn, attend good, well-built, well-equipped and safe 
schools, have caring, committed, excited, and inspiring teachers 
every year, earn high school diplomas that mean they can think 
for a living, go to college and acquire the skills and knowledge 
they'll need to get a good job, have a good career, be good 
citizens and provide good lives for their families: and 

WHEREAS, North Carolina's elected officials, business 
and education leaders, teachers, parents, and all citizens are 
committed to excellence in education and making "First in 
America" a goal for North Carolina's Schools. 

NOW, THEREFORE, by the power vested in me as 
Governor by the laws and Constitution of North Carolina, IT IS 
ORDERED: 

Section 1. The North Carolina Education Cabinet will 
develop a set of "First m America Goals" to be 
reached by 2010. 

The North Carolina Education Cabinet, chaired by 
the Governor and including the State Superintendent of Public 
Instruction, the Chairman of the State Board of Education, the 
President of the University of North Carolina system, and the 
President of the North Carolina Community Colleges, will 
develop a set of "First in America School Goals" by September 
I, 1999. The Education Cabinet shall invite the adjunct member 
representing the independent colleges and universities to 
participate in its deliberations. These goals will set out what it 
will take to be First in America by 2010 and will include these 
measures of true excellence in education: 



3^^ 



6"\ 

•yih 



gth 



10* 



Getting young children ready to start school 

healthy and ready to learn. 

Putting in rigorous academic standards. 

Ensuring that teachers are trained in the 

subjects they teach. 

Requiring all teachers to undergo stringent 

evaluations throughout their careers. 

Turning around schools where students aren't 

learning. 

Enforcing tough discipline policies. 

Requiring meaningful high school graduation 

exams. 

Getting parents, businesses and communities 

involved in schools. 

Finding a volunteer mentor for every child 

who needs one. 

Developing a report card for every school in 



our state that gives parents and taxpayers 
information on test scores, school safety, 
graduation rates, teacher qualifications and 
related data that will tell us how we're doing 
and whether we're on track to be First in 
America by 2010. 

Section 2. The State Education Commission will develop 

implementation strategies for each of the education 

sectors to assist the Education Cabinet in reaching 

the First in America Goals. 

The State Education Commission, consisting of the 

Board of Governors of The University of North Carolina, the 

State Community College Board, and the State Board of 

Education, will review the First in America by 2010 Goals 

developed by the Education Cabinet and develop implementation 

strategies and time lines for each of the sectors and submit them 

to the Education Cabinet for approval by July 1 , 2000. 

Section 3. The North Carolina Research Council will design 

a State Education Report Card, track progress and 

issue an annual progress report. 

The North Carolina Research Council, under the 

direction of the Education Cabinet and in cooperation with the 

Education Commission, w ill design a state education report card, 

track progress and issue and annual progress report. Data 

related to the First in America Goals and measures set by the 

Education Cabinet will be provided by the three public school 

sectors. The Research Council will analyze the data to 

determine the state's progress and publish and disseminate an 

annual report that reflects the overall progress of the state. 

Section 4. Advisory Groups 

The Education Cabinet may appoint advisory 
groups to assist with its work and to solicit input from education, 
business, and community constituents. Advisory group members 
shall serve without compensation but, subject to the availability 
of funds, shall be eligible for per diem, travel, and subsistence 
as provided by North Carolina rules, regulations, and General 
Statutes. 

Section 5. Cooperation of Governmental Agencies 

The heads of all state departments and agencies 
shall, to the extent permitted by law, provide the Education 
Cabinet with information required to achieve the purposes of the 
Order. 

Section 6. Effective Date 

This order is effective immediately and shall 
remain in effect until rescinded by the Governor 

Done in the Capital City of Raleigh. North 
Carolina, this the 4"' day of February, 1 999. 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1375 



IN ADDITION 



This Section conluiiis public notices that are required to be published in the Register or have been approved by the Codifier 
oj Rules for publication^ 



I 



U.S. Department of Justice 
Civil Riglits Division 



EJ:VLO:SMC:cly Voting Section 

DJ 166-012-3 PO Box 66128 

98-3941 Washington, DC. 20035-61 2i 



Februarys, 1999 



Albert M. Benshoff. Esq. 

City Attorney 

P.O. Box 1388 

Lumberton. North Carolina 28359 



Dear Mr Benshoff: 



This refers to the November 9. 1998, annexation and its designation to Ward 1 for the City of Lumberton in Robeson 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We 
received your submission on December 14, 1998. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .41 ). 



Sincerely, 



Elizabeth Johnson 
Chief Voting Section 



1376 NORTH CAROLINA REGISTER March 1, 1999 13:17 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a lemporaiy rule sen'es as a Notice of Rule-making Proceedings and can be found in the Register under 
the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 
150B-2I.2. 



. TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

CHAPTER 3 - MARINE FISHERIES 

^KJotice of Rule-making Proceedings is hereby given by the NC Marine Fisheries Commission in accordance with G.S. 
J. V 150B-2L2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: I5A NCAC 3. Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S 113-134: 113-182: 113-182.1: 143B-289.52 

Statement of the Subject Matter: The Marine Fisheries Commission will consider adoption of temporaty rules which 
implement lemporaiy management measures that are necessary to ensure the viabilit}' of the river herring fishery while the river 
herring fishery management plan is being developed. 

Reason for Proposed Action: The Marine Fisheries Commission's guidelines for preparing Fisher}- Management Plans require 
that species designated as stressed-declining or depressed on the NC Division of Marine Fisheries Stock Status Report be priority 
species for development of Fishery Management Plans. The updated Stock Status Report lists river herring as depressed in the 
.Albemarle Sound area and unknown for the other systems. Consequently, a provisional plan is required within 90 days of the 
issuance of the Slock Status Report. 

Comment Procedures: Written comments may be submitted to the Marine Fisheries Commission. .Attention: Juanita Gaskill. PO 
Box '69. Morehead City. NC 28557. The Marine Fisheries Commission will consider adoption of temporary rules at a Marine 
Fisheries Commission Meeting to be held February 24. 1999. at the Beaufort County Commimity College at 4:00 p.m. 



13:17 NORTH CAROLINA REGISTER March I, 1999 1377 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-2 1.1(e). publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Rule-making Agency: DHHS - Commission for the 
Blind State Rehabilitation Council 

Rule Citation: 10 NCAC 19G .0823. .0827 

Effective Date: March 15. 1999 

Findings Reviewed and Approved by: Julian Mann 111 

Authority for the rule-making: G.S 143-545.1: 145-546.1 : 
1438-15^ 

Reason for Proposed Action: On August 7. 1998 the federal 
Workforce Investment Act of 1998 (P.L. 105-220) was enacted. 
Included in this Act were the 1998 Amendments to the 
Rehabilitation Act. Section 102(c) of the Rehabilitation Act 
Amendments made several changes to the requirements for 
States to establish procedures for impartial due process 
hearings as folloM's: 

(1) the amendments require that the procedures enable 
a party in an appeal to seek a review of a hearing 
officer's decision by the head of the designated State 
Agency (the Department of Health and Human 
Services) or an official of the Governor's Office. 
Previous federal Iom' permitted a revicM' of the 
hearing officer's decision by the Division Director 
upon his own discretion. 

(2) the amendments also specif' that court review of 
decisions may be sought by bringing a civil action in 
any State Court of cotnpetent jurisdiction or any 
district court of the United States of competent 
jurisdiction. The previous federal law did not 
address judicial review. 

Comment Procedures: Written comments concerning this 

rule making action may be submitted within 60 days after the 

date of publication in this issue in the North Carolina 

Register. Comments must be submitted to: 

Patricia Purser 

Director Support Services 

Division of Senices for the Blind 

309 Ashe .Avenue 

Raleigh. NC 27606 

Phone: (919) 715-8806 

£- A lail: P Purser d dhn state, nc. us 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period. 



CHAPTER 19 - SERVICES FOR THE BLIND 

SUBCHAPTER 19G - VOCATIONAL 
REHABILITATION 

SECTION .0800 - HEARING PROCEDURE 

.0823 SECRETARY'S REVIEW AND FINAL 
DECISION 

(a) The Division Dir e ctor Either parry may request an 
impartial review of the hearing officer's decision and render 
th e final d e cision, by the Secretary of the Department of 
Health and Human Services within 20 days of the receipt of 
the decision. 

(b) The Secretary' may delegate the responsibility for 
reviewing the hearing officer's decision and making the final 
decision to another employee of the Department but shall not 
delegate the responsibility to any officer or employee of the 
Division. 

(c) If th e Division Director d e cid e s to revi e w th e h e aring 
offic e r's d e ci s ion. In conducting the review, the Dir e ctor 
reviewing official shall send the written notification to both 
parties and allow the submission of additional evidence as 
required by Sec. 102(c) of the Rehabilitation Act of 1973 (as 
amended by the Rehabilitation Act Amendments of 1998. W 
C.F.R. 361. '1 8(c)(2)(iv) and (vii). PL. 105-220). The written 
notification shall be given to th e applicant or cli e nt personally 
or by certified mail. If given by certified mail, it shall be 
deemed to have been given on the delivery date appearing on 
the return receipt. 

(b) (dj The Division Dir e ctor' s d e cision to r e vi e w th e 
h e aring officer's decision reviewing official's revievs shall be 
based on the following standards of review: 

(1 ) The hearing officer's decision shall not be arbitrarv: 
capricious, and abuse of discretion, or otherwise 
unreasonable. 

(2) The hearing officer's decision shall be supported b\ 
substantial evidence, i.e. consistent with facts and 
applicable federal and state policy. 

(3) In reaching the decision, the hearing officer shall 
give appropriate and adequate interpretation to such 
factors as: 

(A) the federal statute and regulations as they 
apply to a specific issue in question: 

(B) the state plan as it applies to a specific issue 
in question: 

(C) division procedures as the\ apply to a specific 
issue in question; 

(D) key portions of conflicting testimony; 

(E) division options in the deliverv of services 
where such options are permissible under 
federal statute; 

(F) restrictions in the federal s tatu e statute with 



1378 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



TEMP01L4R Y R ULES 



regard to supportive services as maintenance 

and transportation; and 
(G) approved federal or division policy as it 

relates to an issue in question. 
{4) [ej Upon a d e t e rmination to r e vi e w th e h e aring offic e r's 
d e ci s ion, th e Divi s ion Dir e ctor The reviewing official shall 
make the final decision and provide such decision in writing to 
both parties within 30 days of providing notice of intent to 
review the hearing officer's decision. The decision shall 
include a fuj] report of the findings and the grounds for the 
decision, a writt e n r e port th e r e of a s r e quir e d by 34 C.F.R. 
36l.4 8 (c)(2)(viii) and (ix). The Division Director reviewing 
official shall not overturn or modify a decision, or part of a 
decision, of an impartial hearing officer that supports the 
position of the individual except as allowed under Sec. 102(c) 
of the Rehabilitation Act of 1973 (as amended by the 
Rehabilitation Act Amendments of 1998, RL. 102 569, 105- 
220). S e ction 102(d)(3)(C). The fmal decision shall be given 
to both th e applicant or c l i e nt parties personally or by certified 
mail. If given by certified mail, it shall be deemed to have 
been given on the delivery date appearing on the return receipt, 
(e) ijQ The hearing officer's decision shall be the final 
decision under the conditions specified in 54 — C.F.R. 
361. ' 1 8 (c)(2)(v). Sec. 102(c) of the Rehabilitation Act of 1973 
(as amended by the Rehabilitation Act Amendments of 1998, 
RL. 105-220). 

ff) tgj The Division Director shall forward a copy of the 
final decision, whether issued under (d) or ( e ) Paragraph (e) or 
(f) of this Rule, to the CAP Director, the regional 
rehabilitation supervisor, and the applicant's or client's 
representative, as appropriate. A copy shall also be included 
in the individual's official case record. 

History Note: Authority G.S. 1 43-545. 1: 143-546. 1: 

143B-15~: 1508-2: 150B-23: RL 105-220: 

Eff. December 1, 1990: 

Amended Eff. Jamiaiy 1 . 1996: 

Temporary Amendment Eff. A f arch 15. 1999. 

.0827 CIVIL ACTION 

Judicial review of decisions issued pursuant to Rules .0802 
through .0824 of this Section shall be as specified in GtSt 
I50B. Articl e 4 with the exc e ption of G.S. I50B 51(a) wh i ch 



shall not appK. Sec. 



of the Rehabilitation Act of 1973 



(as amended by the Rehabilitation Act Amendments of 1998. 
RL. 105-220). 



Hisloiy Note: Authorit)- G.S. 1 43-545. 1: 
I43B-I57: 150B-l(d)I3: I50B-2: I50B-23: RL 
Eff December 1 . 1990: 
Temporary Amendment Eff. March 15. 1999. 



143-546.1: 
105-220: 



•k-k-k'k-k-kii-kiv-kic'k -k -k 



Rule-making Agency: 

Rehubiltlulion Sen'ices 



DHHS - Diyision of Vocational 



Rule Citation: 10 NCAC 20B .0224. .0228 

Effective Date: March 15. 1999 

Findings Reviewed and Approved by: Julian Mann 111 

Authority for the rule-making: G.S. 143-545.1 : 143-546.1 

Reason for Proposed Action: On August 7. 1998 the federal 
Workforce Investment Act of 1998 (RL 105-220) was enacted. 
Included in this Act were the 1998 Amendments to the 
Rehabilitation Act. Section 102(c) of the Rehabilitation Act 
Amendments made several changes to the requirements for 
States to establish procedures for impartial due process 
hearings as follows: 

(1) the amendments require that the procedures enable 
a part}' in an appeal to seek a review of a hearing 
officer's decision by the head of the designated State 
Agency (the Department of Health and Human 
Services) or an official of the Governor's Office. 
Rrevious federal lavi' permitted a review of the 
hearing officer's decision by the Division Director 
upon his own discretion. 

(2) the amendments also specify that court revie^r of 
decisions may be sought by bringing a civil action in 
any State Court of competent jurisdiction or any 
district court of the United States of competent 
jurisdiction. The previous federal Ioh' did not 
address court review. 

Comment Procedures: Written comments concerning this 
rule-making action may be submitted within 60 days after the 
date of publication in this issue in the North Carolina 
Register. Comments must be submitted to Jackie Stalnaker. 
Rule-making Coordinator Division of Vocational 
Rehabilitation Sen'ices. PO Box 26053. Raleigh. NC 27611. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars (S 5. 000. 000) in a 1 2-month period. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

SUBCHAPTER 20B - PROCEDURE 

SECTION .0200 - CONTESTED CASES: 
ADMINISTRATIVE REVIEWS: APPEALS HEARINGS 

.0224 SECRETARY'S REVIEW AND FINAL 
DECISION 

(a) Th e divi s ion dir e ctor Either parts may request an 
impartial review of the hearing officer's decision and r e nd e r 
th e fina l d e ci s ion by the Secretary of the Department of Health 
and Human Services within 20 days of the receipt of the 
decision. 

(b) The Secretary may delegate the responsibility for 



13:17 



NORTH CAROLINA REGISTER 



March 7. 1999 



1379 



TEMPORARY R ULES 



reviewing the hearin g officer's decision and mailing the final 
decision to another employee of the Department but shall not 
delegate the responsibility to anj; officer or employee of the 
Division. 

(c) If th e division dir e ctor d e cid e s to revi e w th e h e aring 
offic e r's d e ci s ion. In conducting the review, the dir e ctor 
reviewing official shall send the written notification to both 



decision under the 
361. 48 (c)(2)(v). Sec. 



conditions specified in 54 — C.F.R. 
02(c) of the Rehabilitation Act of 1973 



parties and allow the submission of additional evidence as 
required by Sec. 102 (cj of the Rehabilitation Act of 1973 (as 
amended by the Rehabilitation Act Amendments of 1998, 34 
C.F.R. 361. 18 (cH2)(iv) and (vii). RL. 105-220). The written 
notification shall be given te th e applicant or client personally 
or by certified mail. If given by certified mail, it shall be 
deemed to have been given on the delivery date appearing on 
the return receipt. 

(b) (dj The division director's decision to r e vi e w th e 
h e aring offic e r' s d e cision reviewing official's review shall be 
based on the following standards of review: 

( 1 ) Is the hearing officer's decision arbitrary, 
capricious, an abuse of discretion, or otherwise 
unreasonable? 

(2) Is the hearing officer's decision supported by 
substantial evidence, i.e.. consistent with facts and 
applicable federal and state policy? 

(3) In reaching the decision, has the hearing officer 
given appropriate and adequate interpretation to 
such factors as: 

(A) the federal statute and regulations as they 
apply to specific issue(s) in question; 

(B) the state plan as it applies to the specific 
issue(s) in question; 

(C) division rules as they apply to the specific 
issue(s) in question; 

(D) key portions of conflicting testimony; 

(E) division options in the delivery of services 
where such options are permissible under the 
federal statute; and 

(F) restrictions in the federal statute with regard 
to such supportive services as maintenance 
and transportation. 

{4) (e) Upon a determination to r e v ie w th e h e aring offic e r' s 
d e ci s ion. The division dir e ctor reviewing official shall make 
the final decision and provide such decision jn writing to both 
parties within 30 days of providing notice of intent to review 
the hearing officer's decision. The decision shall include a full 
report of the findings and the grounds for the decision, the 
wr i tt e n — r e port — th e r e of — as — r e quir e d — by — 34 — C.F.R. 
361. 48 (c)(2)(vi i i) and (ix). The division dir e ctor reviewing 
official shall not overturn or modify' a decision, or part of a 
decision, of an impartial hearing officer that supports the 
position of the individual except as allowed under Sec. 102 (c) 
of the Rehabilitation Act of 1973 (as amended by the 
Rehabilitation Act Amendments of 1998, RL. 102 569 105- 
220). S e ction 102(d)(3)(C). The final decision shall be given 
to the both applicant parties or cli e nt personally or by certified 
mail. If given by certified mail, it shall be deemed to have 
been given on the delivery date appearing on the return receipt. 

(jQ fe^ The hearing officer's decision shall be the final 



(as amended by the Rehabilitation Act Amendments of 1998, 
RL. 105-220). 



(g) ff) The division director shall forward a copy of the 
final decision, whether issued under (d) or ( e ) Paragraph (e) or 
(f) of this Rule, to the d e puty director Chief of Operations, the 
CAP director, the regional director, and the applicant's or 
client's representative, as appropriate. A copy shall also be 
included in the individual's official case record. 

History Note: Authority G.S. 143-545.1: 1 43-546. 1: I50B- 

1: RL 105-220: 

Eff. Septetnber 1, 1989: 

Amended Eff. April 1. 1997: October 1. 1994: 

Temporary Amendmerit Eff. March 15, 1999. 

.0228 CIVIL ACTION 

Judicial review of decisions issued pursuant to Rules .0202 
through .0225 of this Section shall be as specified in GtSt 
150B, Articl e '^1 with th e exception of G.S. 150B 51(a) which 
shall not apply. Sec. 102(c) of the Rehabilitation Act of 1973 
(as amended by the Rehabilitation Act Amendments of 1998, 
RL. 105-220). 

HistoiyNote: Authority G.S. 143-545.1: 143-546.1: 150B- 

1: RL 105-220: 

Eff. September I. 1989: 

Temporary Amendment Eff. March 15, 1999. 



I 



1380 



NORTH CAROLINA REGISTER 



March I, 1999 



13:17 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting of 
December 17, 1998 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative Procedure 
Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been 
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be 
published in the Register. The rules published in full text are identified by an * in the listing of approved rules. Statutory 
Reference: G.S 150B-21.I7. 

These rules unless otherm'se noted, will become effective on the 31st legislative day of the 1999 Session of the General 
.Assembly or a later date if specified by the agency unless a hill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill 
receives an imfa\'orahle final action or the day the General .Assembly adjourns. Statutory reference: G.S. 150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



1 NCAC 


05A 


.0101* 




1 NCAC 


05A 


.0108* 




1 NCAC 


05A 


.0112 




1 NCAC 


05 B 


.0101 - 


.0102 


1 NCAC 


05 B 


.0201* 




1 NCAC 


05 B 


.0203* 




1 NCAC 


05 B 


.0206* 




1 NCAC 


05 B 


.0208* 




1 NCAC 


05B 


.0301* 




1 NCAC 


05 B 


.0302 - 


.0303 


1 NCAC 


05B 


.0305 - 


.0306 


1 NCAC 


05 B 


.0309* 




1 NCAC 


05 B 


.0310 




1 NCAC 


05 B 


.0314- 


.03 1 7 


1 NCAC 


05 B 


.0401 - 


.0403 


1 NCAC 


05 B 


.0503* 




1 NCAC 


05 B 


.0601* 




1 NCAC 


05 B 


.0701* 




1 NCAC 


05 B 


.0801 - 


.0802 


1 NCAC 


05 B 


.0905* 




1 NCAC 


05 B 


.0906 




1 NCAC 


05 B 


.1101 - 


.1102 


1 NCAC 


05 B 


.1105 




1 NCAC 


05 B 


.1301 




1 NCAC 


05 B 


.1303 




1 NCAC 


05 B 


.1401 - 


.1402 


1 NCAC 


05 B 


.1501* 




1 NCAC 


05 B 


.1505* 




1 NCAC 


05B 


. 1 507 




1 NCAC 


05 B 


.1509* 




1 NCAC 


05 B 


.1510- 


.1511 


1 NCAC 


05 B 


.1512* 




1 NCAC 


05 B 


.1513 




1 NCAC 


05 B 


.1517 




1 NCAC 


05 B 


.1518- 


.1520 


1 NCAC 


05 B 


.1521 




1 NCAC 


05 B 


.1601 - 


.1605 


1 NCAC 


05 B 


.1901* 




1 NCAC 


05 B 


.1903* 




1 NCAC 


05 B 


. 1 906 - 


.1907 


1 NCAC 


05 B 


.1909 




1 NCAC 


15 


.0202 - 


.0203 



13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 



NCR 627 
NCR 627 
NCR 627 
NCR 627 
NCR 627 
NCR 628 
NCR 628 
NCR 628 
NCR 629 
NCR 629 
NCR 631 
NCR 631 
NCR 631 
NCR 631 
NCR 631 
NCR 63 1 
NCR 633 
NCR 633 
NCR 633 
NCR 634 
NCR 634 
NCR 634 
NCR 634 
NCR 634 
NCR 634 
NCR 634 
NCR 635 
NCR 635 
NCR 635 
NCR 635 
NCR 635 
NCR 636 
NCR 636 
NCR 636 
NCR 636 
NCR 636 
NCR 638 
NCR 638 
NCR 639 
NCR 639 
NCR 639 
NCR 640 



13:17 



NORTH CAROLINA REGISTER 



March 7. 7999 



1381 



APPROVED RULES 





NCAC 


15 


.0204 






NCAC 


15 


.0207 - 


.0208* 




NCAC 


15 


.0209 - 


.0210 




NCAC 


15 


.0211* 






NCAC 


15 


.0214* 






NCAC 


25 


.0211 






NCAC 


25 


.0212- 


.0213* 




NCAC 


25 


.0301 - 


.0303* 




NCAC 


25 


.0402* 






NCAC 


25 


.0504 - 


.0505 




NCAC 


25 


.0506* 






NCAC 


25 


.0602 - 


.0603* 




NCAC 


25 


.0605* 






NCAC 


3 OF 


.0305* 




4 


NCAC 


OlE 


.0202 




4 


NCAC 


OlE 


.0205 - 


.0207 


4 


NCAC 


OlE 


.0303 




4 


NCAC 


OlE 


.0306 




4 


NCAC 


OIK 


.0101 




4 


NCAC 


OIK 


.0104- 


.0105 


4 


NCAC 


OIK 


.0202 - 


.0206 


4 


NCAC 


OIK 


.0301 




4 


NCAC 


OIK 


.0401 




4 


NCAC 


OIK 


.0404 




10 


NCAC 


03U 


.0305* 




10 


NCAC 


03U 


.1601* 




10 


NCAC 


03U 


.2805 - 


.2806* 


10 


NCAC 


03U 


,2810* 




10 


NCAC 


14C 


.1151* 




10 


NCAC 


20C 


.0206* 




10 


NCAC 


26M 


.0201 - 


.0203* 


10 


NCAC 


26M 


.0305* 




11 


NCAC 


08 


.0912* 




11 


NCAC 


12 


.0840 




11 


NCAC 


12 


.0841* 




11 


NCAC 


12 


.0842* 




12 


NCAC 


09B 


.0301* 




13 


NCAC 


12 


.0101 




13 


NCAC 


12 


.0104 




13 


NCAC 


12 


.0303* 




13 


NCAC 


12 


.0304 




13 


NCAC 


12 


.0305* 




13 


NCAC 


12 


.0306 - 


.0309 


13 


NCAC 


12 


.0310* 




13 


NCAC 


12 


.0502 




13 


NCAC 


12 


.0602 - 


.0603 


13 


NCAC 


12 


.0604* 




13 


NCAC 


12 


.0605 




13 


NCAC 


12 


.0701 




13 


NCAC 


12 


.0702* 




13 


NCAC 


12 


.0803 - 


.0807 


13 


NCAC 


19 


.0101 - 


.0102 


13 


NCAC 


19 


.0201 




13 


NCAC 


19 


.0301 - 


.0302 


13 


NCAC 


19 


.0401 - 


.0402* 


13 


NCAC 


19 


.0501* 




13 


NCAC 


19 


.0502 




13 


NCAC 


19 


.0601 - 


.0603 



13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:06 
13:06 
13:06 
13:06 
13:02 
13:06 
13:01 
13:07 
13:05 
13:05 
13:05 
13:05 
13:01 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 



NCR 641 
NCR 641 
NCR 641 
NCR 641 
NCR 641 
NCR 642 
NCR 642 
NCR 642 
NCR 643 
NCR 643 
NCR 644 
NCR 644 
NCR 645 
NCR 646 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 652 
NCR 540 
NCR 540 
NCR 543 
NCR 546 
NCR 198 
NCR 547 
NCR 5 
NCR 588 
NCR 488 
NCR 673 
NCR 673 
NCR 673 
NCR 6 
NCR 676 
NCR 676 
NCR 677 
NCR 678 
NCR 678 
NCR 680 
NCR 681 
NCR 681 
NCR 681 
NCR 682 
NCR 683 
NCR 683 
NCR 684 
NCR 684 
NCR 686 
NCR 686 
NCR 687 
NCR 687 
NCR 688 
NCR 688 
NCR 688 



1382 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



APPROVED RULES 



13 


NCAC 


19 


.0604* 


13:08 NCR 6SS 


13 


NCAC 


19 


.0605 


13;0SNCR6SS 


13 


NCAC 


19 


.0701* 


13:08 NCR 688 


13 


NCAC 


19 


.0702 


13:08 NCR 688 


15A 


NCAC 


OIN 


.0403* 


13:04 NCR 364 


15A 


NCAC 


OIN 


.0604* 


13:04 NCR 366 


15A 


NCAC 


OIN 


.0701* 


13:04 NCR 366 


15A 


NCAC 


OIN 


.0703* 


13:04 NCR 367 


15A 


NCAC 


OlO 


.0101 


13:07 NCR 589 


15A 


NCAC 


OlO 


.0102* 


13:07 NCR 589 


15A 


NCAC 


OlO 


.0103 


13:07 NCR 590 


15A 


NCAC 


OlO 


.0104- .0105* 


13:07 NCR 590 


15A 


NCAC 


OlO 


.0106 


13:07 NCR 591 


15A 


NCAC 


OlO 


.0107* 


13:07 NCR 591 


15A 


NCAC 


OlO 


.0108 -.0109 


13:07 NCR 591 


15A 


NCAC 


02B 


.0248 -.0251* 


13:04 NCR 369 


15A 


NCAC 


02 B 


.0311* 


13:04 NCR 376 


15A 


NCAC 


02D 


.1208* 


13:03 NCR 283 


15A 


NCAC 


03P 


.0202* 


13:03 NCR311 


15A 


NCAC 


06E 


.0107 


13:08 NCR 688 


15A 


NCAC 


07H 


.0308* Amended Eff. Januan. 1. 1999 


not required. G.S. 1508-21. 5 


15A 


NCAC 


07O 


.0105* 


13:06 NCR 551 


15A 


NCAC 


07O 


.0202* 


13:06 NCR 551 


15A 


NCAC 


08G 


.0401 - .0407* 


13:02 NCR 227 


15A 


NCAC 


08G 


.0409* 


13:02 NCR 229 


15A 


NCAC 


08G 


.0505* 


13:02 NCR 230 


15A 


NCAC 


08G 


.0802* 


13:02 NCR 232 


15A 


NCAC 


08G 


.0902* 


13:02 NCR 233 


15A 


NCAC 


IOC 


.0302* 


13:05 NCR 492 


15A 


NCAC 


IOC 


.0305* 


13:05 NCR 492 


15A 


NCAC 


IOC 


.0404* 


12:12 NCR 1010 


15A 


NCAC 


IOC 


.0405* 


13:05 NCR 492 


15A 


NCAC 


lOF 


.0310 


12:24 NCR 2224 


15A 


NCAC 


128 


.0901 


13:05 NCR 495 


15A 


NCAC 


ISA 


.0425 


13:06 NCR 567 


15A 


NCAC 


ISA 


.0432 


13:06 NCR 567 


15A 


NCAC 


ISA 


.1202*Amended Eff. Januan, 1, 1999 


not required, G.S. 150B-21.5 


15A 


NCAC 


ISA 


.2612 


13:06 NCR 567 


15A 


NCAC 


ISA 


.2804* 


13:02 NCR 237 


17 


NCAC 


OIC 


.0601* 


13:10 NCR 808 


17 


NCAC 


03B 


.0102 - .0104*Repealed EfT. Januan. 1. 1999 


not required. G.S. 150B-l(d)(4); 150B- 
21.5(b)(1) 


17 


NCAC 


03B 


.01 06* Repealed Eff. Januan 1. 1999 


not required. G.S. 150B-l(d)(4); 150B- 
21.5(b)(1) 


17 


NCAC 


03B 


.0108 - .01 14*Repealed Eff. Januan 1. 1999 


not required. G.S. 150B-l(d)(4): 150B- 
21.5(b)(1) 


17 


NCAC 


04D 


.0204 


13:05 NCR 496 


17 


NCAC 


04D 


.0303 


13:05 NCR 496 


17 


NCAC 


04D 


.0305 


13:05 NCR 496 


17 


NCAC 


04D 


.0401 -.0402 


13:05 NCR 496 


17 


NCAC 


04D 


.0501 


13:05 NCR 496 


17 


NCAC 


04D 


.0505 - .0506 


13:05 NCR 496 


17 


NCAC 


04D 


.0508 


13:05 NCR 496 


17 


NCAC 


04D 


.0610 


13:05 NCR 496 


17 


NCAC 


04D 


.0901 -.0903 


13:05 NCR 496 


17 


NCAC 


04D 


.0907 - .0908 


13:05 NCR 496 


17 


NCAC 


04D 


.1001 


13:05 NCR 496 


17 


NCAC 


04D 


.1003 


13:05 NCR 496 


13:17 


NORTH CAROLINA REGISTER March 1, 


1999 1383 



APPROVED RULES 



17 


NCAC 


05B 


.0107 


17 


NCAC 


05 B 


.1105 


17 


NCAC 


05 C 


.0703 


17 


NCAC 


05C 


.2004* 


17 


NCAC 


05 C 


.2101 - 


17 


NCAC 


068 


.0104 


17 


NCAC 


06B 


.0110 


17 


NCAC 


06B 


.0606 


17 


NCAC 


068 


.3203 


17 


NCAC 


068 


.3206 


17 


NCAC 


068 


.3207* 



:i02 



Repealed EtT. Januan 1. 1999 



NCAC 068 .3719*RepealedEfl: Januan. 1. 1999 



17 


NCAC 


068 


.3901 




17 


NCAC 


068 


.3904 




17 


NCAC 


068 


.4004 




17 


NCAC 


06C 


.0124 




17 


NCAC 


078 


.0104 




17 


NCAC 


078 


.0206 




17 


NCAC 


078 


.1301 




17 


NCAC 


078 


.1303 




17 


NCAC 


078 


.1602 




17 


NCAC 


078 


.1704*AmendedEff. April 


, 1999 


17 


NCAC 


078 


. 1 801* Amended Eff. May 1 


. 1999 


17 


NCAC 


078 


.1905 




17 


NCAC 


078 


.2201*AmendedEtT. May 1 


. 1999 


17 


NCAC 


078 


.2212*AmendedEfr. May 1 


. 1999 


17 


NCAC 


07B 


.2802 




17 


NCAC 


078 


.3201*Amended Eff. April 


1, 1999 


17 


NCAC 


078 


.3301 -.3302 




17 


NCAC 


07B 


.3702 




17 


NCAC 


078 


.5401 -.5406 




17 


NCAC 


078 


.5408 -.54 12 




17 


NCAC 


078 


.5414 -.5424 




17 


NCAC 


078 


.5428 - .5435 




17 


NCAC 


078 


.5438 




17 


NCAC 


078 


.5440 




17 


NCAC 


078 


.5442 - .5444 




17 


NCAC 


078 


.5447 -.5461 




17 


NCAC 


078 


.5463 




17 


NCAC 


091 


.0301*RepealedEff. Januar> 1 


. 1999 


19A 


NCAC 


068 


.0401 




19A 


NCAC 


068 


.0404* 




19A 


NCAC 


068 


.0405 




19A 


NCAC 


068 


.0409 -.04 10 




19A 


NCAC 


068 


.0412 




19A 


NCAC 


068 


.0413* 




19A 


NCAC 


068 


.0414 




19A 


NCAC 


068 


.0417 -.0418 




21 


NCAC 


01 


.0101 




21 


NCAC 


01 


.0105* 




21 


NCAC 


08A 


.0301* 




21 


NCAC 


08A 


.0308 




21 


NCAC 


08A 


.0310 




21 


NCAC 


08A 


.0315 




21 


NCAC 


08F 


.0107* 





13:09 NCR 760 




13:09 NCR 760 




13:09 NCR 760 




13:09 NCR 760 




13:09 NCR 760 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR -^62 




not required. G.S 


150B-l(d)(4): 


21.5(b)(1) 




not required. G.S 


150B-l(d)(4): 


21.5(h)(1) 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR 762 




13:09 NCR 767 




13:09 NCR 767 




13:09 NCR 767 




13:09 NCR 767 




13:09 NCR 767 




not required, G.S. 


150B- 1(d)(4) 


not required, G.S. 


150B-l(d)(4) 


13:09 NCR 767 




not required, G.S. 


1508- 1(d)(4) 


not required, G.S. 


150B-l(d)(4) 


13:10NCR809 




not required, G.S. 


1 508- 1(d)(4) 


13:10NCR809 




13:10NCR809 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




13:06 NCR 552 




not required. G.S 


I50B-I(d)(4): 


21.5(b)(1) 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:06 NCR 557 




13:05 NCR 501 




13:05 NCR 502 




13:08 NCR 696 




13:08 NCR 698 




13:08 NCR 698 




13:08 NCR 699 




13:08 NCR 699 





I 



150B- 



150B- 



1 50B- 



1384 



NORTH CAROLINA REGISTER 



March 7, 1999 



13:17 



APPROVED RULES 



2 


1 NCAC 


08F 


.0504* 




2 


NCAC 


08H 


.0101 - 


.0102* 


2 


NCAC 


081 


.0104* 




2 


NCAC 


08J 


.0102* 




2 


NCAC 


08J 


.0107- 


.0108* 


2 


NCAC 


08J 


.0110- 


.0111* 


2 


NCAC 


08K 


.0104- 


.0105* 


2 


NCAC 


08M 


.0102* 




2 


NCAC 


08M 


.0103- 


.0104 


2 


NCAC 


08M 


.0201 - 


.0202 


2 


NCAC 


08M 


.0204* 




2 


NCAC 


08M 


.0206 - 


.0207 


2 


NCAC 


08M 


.0301 - 


.0306 


2 


NCAC 


08M 


.0401* 




2 


NCAC 


08M 


.0402 - 


.0403 


2 


NCAC 


08N 


.0202* 




2 


NCAC 


08N 


.0208 




2 


NCAC 


08N 


.0302 - 


.0303* 


2 


NCAC 


08N 


.0306- 


.0307* 


2 


NCAC 


32F 


.0103* 




2 


NCAC 


32M 


.0101 - 


.0105* 


2 


NCAC 


32M 


.0106- 


.0107 


2 


NCAC 


32M 


.0108* 




2 


NCAC 


321V1 


.0109- 


.0112 


2 


NCAC 


32M 


.0115 




2 


NCAC 


320 


.0101 - 


.0117 


2 


NCAC 


32R 


.0101 




2 


NCAC 


32R 


.0102- 


.0104* 


2 


NCAC 


32S 


.0101 - 


.0103* 


2 


NCAC 


32S 


.0104 




2 


NCAC 


32S 


.0105 - 


.0106* 


2 


NCAC 


32S 


.0107- 


.0108 


2 


NCAC 


32S 


.0109- 


.0111* 


2 


NCAC 


32S 


.0112 




2 


NCAC 


32S 


.0113* 




2 


NCAC 


32S 


.0115- 


.0116 


2 


NCAC 


32S 


.0117* 




2 


NCAC 


32S 


.0118 




2 


NCAC 


36 


.0227* 




2 


NCAC 


46 


.1317* 




2 


NCAC 


46 


.1414* 




2 


NCAC 


46 


.1606 




2 


NCAC 


46 


.1612* 




2 


NCAC 


46 


,1814* 




2 


NCAC 


46 


.2502* 




2 


NCAC 


46 


.2609* 




2 


NCAC 


46 


.2611* 





13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:08 
13:06 
13:06 
13:06 
13:04 
13:06 
13:04 
13:04 
13:04 



NCR 699 
NCR 700 
NCR 701 
NCR 701 
NCR 701 
NCR 702 
NCR 703 
NCR 703 
NCR 704 
NCR 704 
NCR 704 
NCR 705 
NCR 705 
NCR 706 
NCR 706 
NCR 707 
NCR 707 
NCR 707 
NCR 709 
NCR 709 
NCR 709 
NCR 709 
NCR 709 
NCR 709 
NCR 709 
NCR 709 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 716 
NCR 725 
NCR 559 
NCR 561 
NCR 564 
NCR 421 
NCR 564 
NCR 422 
NCR 423 
NCR 424 



TITLE 1 - DEPARTMENT OF ADMINISTRATION 

CHAPTER 5 - PURCHASE AND CONTRACT 

SUBCHAPTER 5A - DIVISION OF PURCHASE AND 
CONTRACT 

SECTION .0100 - GENERAL 



.0101 RESPONSIBILITY 

The Department of Administration is responsible for 
administering the State's program for the acquisition, 
management, and disposal of personal property', as well as the 
acquisition of services for its agencies. The Secretary of the 
Department of Administration (Secretary) is authorized and 
responsible for adopting and carrying out the rules 
promulgated herein. The administration of this program is 



13: J 7 



NORTH CAROLINA REGISTER 



March 7, 1999 



1385 



APPROVED RULES 



delegated to the State Purchasing Officer (SPO) who reports to 
the Secretary. 

History Note: Authority G.S. 143-49; 

Ejf. February 1. 1976: 

Readopted Eff. February 27, 1979: 

Amended Eff. Ami L '999; Februaiy I. 1996: July 1. 198^. 

.0108 FORMS: PROCEDURES: TERMS AND 
CONDITIONS 

The Division of Purchase and Contract estabHshes 
procedures for acquiring commodities, printing and services 
and prescribes forms, consistent language, terms and 
conditions and advertisement requirements, applicable to all 
agencies for such action. The procedures, forms, consistent 
language, terms and conditions and advertisement 
requirements shall be established taking into consideration 
market conditions and trends, legal requirements, and factors 
determined to be in the State's best interest. These shall be 
furnished to all agencies. 

History Note: Authority' G.S. 143-51: 143-53: 143-55: 143- 

60: 

Eff. February 1. 1976: 

Readopted Eff. Februaiy 27. 1979: 

Amended Eff. .AjTiil L ^^99: May 1, 1988. 

SUBCHAPTER 5B - PURCHASE PROCEDURES 

SECTION .0200 - SPECIFICATIONS 

.0201 TYPES OF SPECIFICATIONS 

There shall be two general t>pes of purchase specifications. 
A standard specification shall be originated and developed b\ 
the Division of Purchase and Contract. It shall be 
comprehensive in nature and intended for repeated use. The 
other type of specification shall be originated by the user and 
modified as necessary to accomplish the intent of the rules of 
this Subchapter. Other t}pe specifications ma\ be used, 
including, but not limited to, "brand name or equal" or "brand 
specific". 

Histon-Note: Authority G.S. 143-49(2): 143-53: 

Eff. February 1. 1976: 

Readopted Eff. February 27, 1979: 

Amended Eff'. .April L 1999; February 1. 1996. 

0203 DEVELOPMENT OF SPECIFICATIONS 

(a) A standard specification is intended for general use, 
applicable insofar as practicable to the needs of agencies and 
kept current b\ the Division of Purchase and Contract. In 
formulating such a specification, advisory committees made up 
of personnel from various agencies and the private sector may 
be employed for advice and assistance. This t\'pe of 
specification may be offered also for the review and comments 
of manufacturers and suppliers who may participate in future 
bidding on the items in question. 

(b) North Carolina's purchasing program shall be built on 



the principle of competition. Purchasers shall seek 
competitive offers, except as may be permitted by statute or 
rule, from qualified and responsible sources of supply. Where 
competition is available, every purchaser shall use/write 
specifications and requirements that are reasonable to satisfy 
the need, but not unduly restrictive, which shall encourage 
competition in the open market and result in the best possible 
contract for the commodity, printing or service needed. 

History Note: Authority G.S. 143-49(2): 143-53: 

Eff February 1, 1976: 

Readopted Eff February 27, 1979: 

Amended Eff. April L 1999: Februaiy 1, 1996. 

0206 SUBMISSION FOR ADOPTION 

Upon completion of all necessary studies, reviews and 
drafts, any proposed standard specification shall be submitted 
to the SPO for consideration. When a specification is adopted 
as a standard, it becomes applicable to agency purchases 
generally. A standard specification may be modified by the 
Division of Purchase and Contract on an interim basis as 
deemed necessary or advantageous until such time as the SPO 
can consider the proposed revision. 

History Note: Authority G.S 143-49(2): 143-53: 

Eff. Februaiy I, 1976: 

Readopted Eff. Februaiy 27, 1979: 

Amended Eff. April 1, 1999: February I. 1996: July I, 1987. 

.0208 QUALIFIED PRODUCTS LIST 

A qualified products list (QPL) is a type of specification 
which may be adopted as a standard by the Division of 
Purchase and Contract. The essential characteristic of this 
procedure is the examination and prequalification of brands 
and models of products on the basis of samples and tests. The 
prequalification limits offers to products included on the list 
(QPL). Manufacturers may submit products for evaluation and 
inclusion on the list. Sources for manufacturers are the 
Division's active bidder mailing lists, if available, and 
notifications of interest received in advance from other firms. 
The Division mav impose a deadline for submission of 
samples. If a product is added to the list, it is then eligible to 
be offered in response to a solicitation document. 

HisloiyNote: Authority G.S. 143-49(2): 143-53: 

Eff: Februaiy 1, 1976: 

Readopted Eff Februaiy 27. 1979: 

Amended Eff'. .April l_ 1999: February I, 1996. 

SECTION .0300 - PROCUREMENT AUTHORIZATION 
AND PROCEDURES 

.0301 CONTRACTING REQUIREMENTS 

Except where a waiver, special delegation, exemption, or an 
emeigencv purchase is permitted by rule, all purchases 
involving the expenditure of public funds made by universities 
and other agencies for commodities, services and printing, not 
covered by statewide term contracts, shall comply with the 



1386 



NORTH CAROLINA REGISTER 



March I, 1999 



13:17 



APPROVED RULES 



following delegations and procedures: 

(1) Small Purchases: A small purchase is defined as the 
purchase of commodities, services or printing, not 
covered by a term contract, involving an 
expenditure of public funds of five thousand dollars 
($5,000) or less. The executive officer of each 
agency, or his designee, shall set forth, in writing, 
purchasing procedures for making small purchases. 
The using agency shall award contracts for small 
purchases. The SPO may require a copy of the small 
purchase procedures be sent to the Division of 
Purchase and Contract. 

(2) Purchases Governed by General Delegation or 
Statute: 

(a) For purchases made by a university or agency 
involving an expenditure of public funds over 
five thousand dollars ($5,000), up to the 
benchmark established for a university under 
the provisions of G.S. 116-31.10, and up to 
the general delegation limit for agencies 
established by the SPO under the provisions 
of G.S. 143-5'3(a)(2): 

(i) Competition shall be solicited; 

(ii) Solicitation documents requesting or 
inviting offers shall be issued; 

(iii) Solicitation documents shall include 
standard language, including terms and 
conditions as published by the Division 
of Purchase and Contract on its home 
web page, unless prior written approval 
is obtained from the Division for 
unusual requirements. If additional 
terms and conditions are used, they 
shall not conflict with the Division's 
standard terms and conditions, unless 
prior written approval is obtained from 
the Division for unusual requirements; 
and 

(iv) Mailing lists, if available from the 
Division of Purchase and Contract, 
may be requested and used in addition 
to mailing lists maintained by the 
university or agency for the purpose of 
soliciting competition. 

(b) Agencies and universities shall advertise their 
solicitations through the Division of Purchase 
and Contract for the following purchases: 

(i) Agencies: For purchases involving an 
expenditure of public funds exceeding 
ten thousand dollars ($10,000), up to 
the general delegation limit for an 
agency established by the SPO under 
the provisions of G.S. 143-53(a)(2); 

(ii) Universities: For purchases involving 
an expenditu'-e of public funds 
exceeding twenty five thousand dollars 
($25,000), up to the benchmark 
established for a university under the 



provisions of G.S. 116-31.10. 
Agencies and universities may advertise 
solicitations on smaller dollar purchases 
through the Division of Purchase and 
Contract, 
(c) The using agency shall award contracts under 
the statutory limit for universities and the 
general delegation for all other agencies. 

(3) Competitive Bidding Procedure: Where the total 
requirements for commodities, services or printing 
jobs involve an expenditure of public funds in 
excess of the expenditure benchmark established 
under the provisions of G.S. 116-31.10 or the 
general delegations established by the SPO under 
the provisions of G.S. 143-53(a)(2), the competitive 
bidding procedure as defmed in G.S. 143-52 shall be 
utilized as follows; 

(a) Sealed offers for commodities and printing 
shall be solicited by the Division of Purchase 
and Contract via advertisement; 

(b) For service contracts, the universities and 
other agencies shall solicit sealed offers for 
their university/agency in accordance with the 
rules established for Sub-items (2)(a) and (b) 
of this Rule. After opening and completing 
the evaluation of offers received, the agency 
shall prepare a written recommendation for 
award, and if over the benchmark established 
under G.S. 116-31.10 or the general 
delegations established by the SPO, shall 
submit a copy of all offers received and their 
recommendation of award or other action to 
the Division of Purchase and Contract for 
approval or other action deemed necessary by 
the SPO (Examples: cancellation, negotiation, 
etc.). Notice of the Division of Purchase and 
Contract's decision shall be sent to the 
agency. The using agency shall award 
contracts for services; 

(c) Sealed offers for statewide term contracts for 
commodities, printing and services shall be 
solicited by the Division of Purchase and 
Contract via advertisement. 

(4) For each service contract handled by the agency, the 
agency shall prepare a task description of the 
services and desired results. Task descriptions shall 
contain all of the following: 

(a) The date(s) of service (The contract shall not 
be for more than three years including 
extensions and renewals, without the prior 
approval of the SPO for unusual 
requirements); 

(b) Detailed specifications or type and level of 
work required; 

(c) What the State shall furnish; 

(d) What the contractor shall furnish; 

(e) The method, schedule, and procedures for 
billing and payments; and 



13:1- 



NORTH CAROLINA REGISTER 



March 1, 1999 



1387 



APPROVED RULES 



(f) Other subject matters bearing on the conduct 
of the work. 
(5) Rules applying to service and printing contracts do 
not apply to local school administrative units or 
community colleges. 

History Note: Authority- G.S. 143-49: 143-52: 143-53: 143- 

53.1: ' 

Eff. February I 1976: 

Readopted Ejf. February 27. 1979: 

Amended Eff. February 1. 1996: January 1, 1985: 

Temporary .Amendment Eff. February 15. 1998: 

AmendedEff .April L 1999. 

.0305 PUBLIC OPENING 

(a) Advertised procurements shall be publicly opened at the 
time, date, and place identified in the procurement document. 
At the time of opening, the names of the companies, the 
manufacturer(s) and catalog number(s) of the item(s) they have 
offered and the prices, deliveries and payment terms they have 
submitted shall be tabulated and this tabulation shall become 
public record, except as provided in Paragraph (b) of this Rule. 

(b) Under a two step process, the cosfprice offer(s) shall 
not become public record until the technical offer(s) has been 
evaluated (first step) and then only those offerors determined 
by the agency which issued the solicitation document to have 
acceptable technical offers shall have their cost/price offers 
opened (second step). The cosfprice offers from offerors 
whose technical offers were deemed unacceptable shall remain 
unopened. The remaining cost/price offers shall be publicly 
opened, and the offeror(s) with the acceptable technical 
offer(s) notified of the time and place for the opening. At least 
two agency working days notice shall be given prior to the 
opening. In addition, there shall be at least two agenc\ 
employees present at the opening. 

History Note: Authority G.S. 143-49: 143-52: 143-53: 
Eff. Februaiy 1. 1976: 
Readopted Eff. Februaiy 27. 1979: 
Amended Eff Ami L 1999: Februaiy 1. 1996. 

.0306 LATE OFFERS, MODIFICATIONS, OR 
WITHDRAWALS 

No late offer, late modification, or late withdrawal shall be 
considered unless received before contract award, and the 
offer, modification, or withdrawal would have been timely but 
for the action or inaction of agenc> personnel directl> serving 
the procurement process. The offeror shall have his offer 
delivered on time, regardless of the mode of delivery used, 
including the U.S. Postal Service or anv other deliver) services 
available. 

History Note: Authority- G.S. 143-49: 143-52: 
Eff. Februaiy 1. 1976: 
Readopted Eff Februaiy 27, 19 ^9: 
Amended Eff April L. 1999: Februaiy 1. 1996. 

0309 EVALUATION 



(a) In determining the award of contracts, bona fide offers 
shall be considered and evaluated as provided by statute and 
applicable rules. The evaluation criteria to be used in 
determining the award of contract shall be identified in the 
procurement document. 

(b) An unexecuted offer or an offer without a deliver>' time 
shall be rejected. 

(c) During the period of evaluation and prior to award, only 
the information provided in the tabulation is public record. 
Possession of offers, including an) accompanying information 
submitted with the offers, shall be limited to persons in the 
agency who are responsible for handling the offers and 
accompanying information, and to others determined necessary 
by the agency which issued the solicitation document, for the 
purpose of evaluation and award of contract. Offeror 
participation in the evaluation process shall not be permitted. 
Any communication with an offeror that may be necessary for 
purpose of clarification of its offer shall be conducted by the 
agency which issued the solicitation document. After award of 
the contract or when the need for the item or service is 
canceled, the complete file shall be available to an\ interested 
party with the exception of trade secrets subject to the 
provisions of Rules .1 501 and .1518 of this Subchapter. 

HistoiyNote: Authority G.S. 143-49: 143-52: 143-53: 

Eff. Februaiy I. 1976: 

Readopted Eff: February 27. 1979: 

Amended Eff. April f 1999: February 1. 1 996. 

.0314 SOLICITATION DOCUMENTS 

(a) An alternate procurement method to the Invitation for 
Bids (IFB) is a Request for Proposals (RFP). When using a 
RFP, the rules of Subchapters 5A and 58 of this Chapter shall 
also apply. A RFP may also be handled as a two step process 
in accordance with Rule .0305 of this Section. 

(b) For the purpose of Subchapters 5A and 58 of this 
Chapter, a solicitation document is defined as a written 
Request for Quotes (RFQ). RFP or an 1F8. 

(c) All agencies shall use the IFB or RFP document, 
whichever is applicable, when soliciting competition on 
contracts valued over twenty five thousand dollars ($25,000). 
The IFB and RFP solicitation documents used by agencies 
shall require bidders or offerors to certify that each bid or offer 
is submitted competitiveK and without collusion. 



Authority- G.S. 143-49: 143-52: 143-53: 143- 



History Note 

54: 

Eff. Februaiy 1. 1996: 

Amended Eff: April 1 . 1999 



.0315 DIVISION OF REQUIREMENTS 

An agency shall not divide requirements in order to keep the 
expenditure under its benchmark or delegation and thereb\ 
avoid following the appropriate contracting requirement. In 
the case of similar and related items and groups of items, the 
dollar limits apply to the total cost rather than the cost of an\ 
single item. 



138S 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



APPROVED RULES 



History- Note: Authority G.S. 143-52: 143-53: 
Eff. April 1, 1999. 

.0316 ADVERTISEMENT REQUIREMENTS 

(a) Unless already required by statute, all advertisements 
required b> rule shall be through the Division of Purchase and 
Contract via the Division's home page on the internet. If 
advertisement is required by rule, the solicitation shall be 
advertised at least once and at least 10 days prior to the date 
designated for opening. This Rule does not prevent solicitation 
of offers by additional direct mailings or additional 
advertisement by an agency. 

(b) Agencies required by rule to advertise their solicitations 
shall electronically transmit the required data directly to the 
Division's home page. The required data shall include the 
complete solicitation document (specifications, requirements, 
terms and conditions, etc.), with agency name, buyer name, 
phone number and address for accessing hard copies of the 
solicitation, solicitation identification number, title (a short 
description of the commodity, service or printing requirement), 
and the opening date, time and place. If the solicitation 
requires potential offerors to attend a mandatory conference or 
mandatory site visit, this information shall also be furnished 
with the advertisement, to include date. time, location, contact 
person and the contact person's phone number. 

(c) Within three agencN working days from the award of a 
contract that has been advertised through the Division, 
agencies shall electronically transmit an award notice directK 
to the Division's home page on the internet. The award notice 
shall be posted for at least 30 consecutive calendar days. This 
award notice shall identify the contract and award information. 

(d) Exceptions to this Rule are as follows: 

( 1 ) When it is deemed by the agency's executive officer 
or the officer's designee that there is a valid reason 
for the agency not to transmit the advertisement or 
award notice electronically, that agency may submit 
the data to the Division, so the Division may 
transmit it electronically, or the agency may place 
the advertisement (excluding the complete 
solicitation document) via newspaper. If advertised 
via newspaper, the agency which issued the 
solicitation document shall be responsible for the 
advertisement and the award notice shall not be 
required. Some valid reasons include computer 
equipment failure, networking difficulties, or 
insufficient copies of samples for a printing job. 

(2) If there is an attachment to a solicitation that the 
agency detennines will not be electronically 
transmitted, then the solicitation document, when it 
is electronicalK transmitted. shall include 
instructions to contact the agency which issued the 
solicitation to obtain the attachment. 

(3) If an agency determines that it is not feasible to 
electronically transmit a particular solicitation 
document through the Division's home page, then 
the agency shall electronically transmit a summary 
notice in the same way as if it had electronically 
transmitted the solicitation document. The summary 



notice will instruct anyone inquiring about the 
solicitation on the Division's home page to contact 
the agency for a hard copy. 

History Note: Authority G.S. 143-52: 143-53: 
Temporaiy Adoption Eff. Fehruaiy 15. 1998: 
Eff. April 1. 1999. 

.0317 MANDATORY CONFERENCES/SITE VISITS 

(a) It is recommended, except in unusual cases, for agencies 
only to urge and caution potential offerors to attend scheduled 
conferences or site visits. 

(b) When a solicitation requires potential offerors to attend 
a mandatory conference or mandatory site visit, the date, time, 
location, and other pertinent details of the conference or site 
visit shall be given in the solicitation document, and in the 
advertisement (if required by rule). 

(c) If only one potential offeror attends the mandatory 
conference or mandatory site visit, the conference or site visit 
may continue to be conducted, but the solicitation shall be 
canceled immediately following the conference or site visit. If 
this occurs, the agency shall investigate why only one potential 
offeror was in attendance and ascertain if there is any 
competition available. If it is determined that competition is 
available, the agency shall again attempt to obtain competition 
by following the rules of this Subchapter, unless otherwise 
permitted by rule. If it is determined that there is no 
competition available, then the procurement may be handled as 
a waiver as permitted by rule. 

(d) An\ and all questions by a potential offeror regarding a 
solicitation document shall be addressed to the purchaser 
named on the document. An\ and all revisions to the 
solicitation document shall be made onK by written addendum 
from the purchaser. Verbal communications from whatever 
source are of no effect. 

Histoiy Note: Authority G.S. 143-52: 143-53: 
Eff April I. 1999. 

SECTION .0500 - REJECTION OF OFFERS 

.0503 NEGOTIATION 

If an agency does not receive a satisfactory offer in response 
to a solicitation and all offers are rejected, negotiations may be 
conducted with all known sources of supply that ma\ be 
capable of satisfying the requirement, if it is determined by the 
agency that issued the solicitation document that soliciting 
offers again would serve no purpose. The negotiations shall 
be conducted by that agency if under their benchmark or 
delegation. Negotiations shall be conducted in writing and 
shall include standard language and terms and conditions 
issued b\ the Division of Purchase and Contract, unless 
otherwise provided by rule. If the negotiations are conducted 
with only one source or if only one source responds to the 
negotiations, the reason for lack of competition shall be 
documented in writing for public record. Negotiations may 
also be conducted under conditions that merit a waiver of 
competition, or in other situations that are advantageous as 



15:17 



NORTH CAROLINA REGISTER March 1, 1999 



1389 



APPROVED RULES 



determined by the SPO. 



SECTION .1100 - TERM CONTRACTS 



History Note: Authority G.S. 143-52: I -f 3-53: I43-6U: 
Eff. February 1, 1996: 
Amended Eff. April I, 1999. 

SECTION .0600 - PURCHASE OF USED ITEMS 

.0601 GENERAL PROCEDURES 

Rules of this Subchapter regarding seeking competition shall 
be followed wherever feasible, when it appears that the 
acquisition of used commodities is in the public interest. 

History Note: Authority G.S. 143-53: 

Eff. February 7, 1976: 

Readopled February 27, 19 79: 

Amended Eff. April ' 1. 1999: February 1. 1996. 

SECTION .0700 - REMOVAL OF CERTAIN ITEMS 
FROM GENERAL CONSTRUCTION 

.0701 POLICY 

Every agency shall review the items being included in a 
construction/renovation project and remove any items that it 
considers are non-related to the actual construction/renovation 
of the building. Items that are considered commodities or just 
furnishings, and that would complete the project for use by the 
agency, shall be handled in accordance with the rules of this 
Chapter. Items that are usually removed for 

construction/renovation projects include carpet, office panel 
systems, food service equipment, and furniture. If an agency 
determines that one of these items, or any item that is normally 
handled as a commodity purchase, is best suited for inclusion 
in the construction/renovation project, the agency's 
justification shall be documented in writing for public record. 

HisloiyNote: Authority G.S. 143-53: 
Eff. Februaiy 1. 1976: 
ReadoptedEff: February 27. 1979: 
Amended Eff. April L 1999: February 1. 1996. 

SECTION .0900 - INSPECTION AND TESTING 

.0905 SPECIFICATIONS 

When it is determined to be advantageous, the agency which 
awarded the contract may authorize revisions to a contract 
specification, including any cost adjustment associated with 
any such revision, as part of contract administration. If an 
increase in cost results in the total contract value being more 
than the agency's benchmark or delegation, then prior written 
approval shall be obtained from the Division of Purchase and 
Contract, regardless of what agency initially awarded the 
contract. 



.1101 USE 

(a) Term contracts, known also as indefinite quantity or 
requirements contracts, are used generally to establish 
suppliers and prices of a given commodity, group of 
commodities, printing, or services for a period of time without 
guaranteed quantities being specified. Statewide term 
contracts consolidate normal requirements of all agencies into 
one agreement and shall be handled by the Division of 
Purchase and Contract. 

(b) A term contract is a binding agreement between 
purchaser and seller to buy and sell certain commodities, 
printing, or services at certain prices and under stipulated 
terms and conditions. It is neither an "approved list" nor a list 
of approved or ceiling prices. No agency may purchase any 
commodities, printing, or services covered by a statewide term 
contract from any other sources. 

(c) A term contract shall be based upon competition, where 
available, with the potential vendors being advised as to the 
agency(s)" business they are competing for and, if successful, 
the agency(s)" business they have earned. 

(d) Agencies may handle agency specific term contracts for 
use by their agency if the expenditure over the term of the 
contract is under their benchmark or delegation, and the 
commodity, printing, or service is not covered by a statewide 
term contract. 

(e) Rules applying to service and printing contracts do not 
apply to local school administrative units or community 
colleges. 

History Note: Authority- G.S. 115C-522: 115D-58.5: 143- 

52: 143-53: 143-55: 

Eff. Februaiy 1. 1976: 

ReadoptedEff. Februaiy 27. 1979: 

Amended Eff April 1. 1999: Februaiy 1. 1996. 

.1102 DETERMINING FACTORS 

In determining whether a product should be on a statewide 
term contract, the Division shall consider such factors as 
volume, nature of the product, repetitiveness of use, relative 
stability of prices, and transportation costs. In determining 
whether a product should be on an agency specific term 
contract, the agency shall consider such factors as volume, 
nature of the product, repetitiveness of use, relative stability of 
prices, and transportation costs. 

HistoiyNote: Authority G.S. 143-52: 143-53: 143-55: 
Eff. Februaiy 1. 1976: 
ReadoptedEff Februaiy 27. 19 '^9: 
Amended Eff April 1, 1999. 

SECTION .1400 - WAIVER OF COMPETITION 



History Note: Authority G.S. 143-53: 143-60: 
Eff Februaiy 1, 1976: 
Readopted Eff. February 27. 19 79: 
Amended Eff April L 1999: February I. 1996. 



.1401 POLICY 

Under conditions listed in this Rule, and otherwise if 
deemed to be in the public interest by the SPO or the agency, if 
under its delegation or benchmark, competition ma\ be 



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waived. Conditions permitting waiver include cases where 
performance or price competition is not available; where a 
needed product or service is available from only one source of 
supply; where emergency action is indicated; where 
competition has been solicited but no satisfactory offers 
received; where standardization or compatibility is the 
overriding consideration; where a donation predicates the 
source of supply; where personal or particular professional 
services are required; where a particular medical product or 
service, or prosthetic appliance is needed; where a product or 
service is needed for the blind or severely disabled and there 
are overriding considerations for its use; where additional 
products or services are needed to complete an ongoing Job or 
task; where products are bought for "over the counter" resale; 
where a particular product or service is desired for educational, 
training, experimental, developmental or research work; where 
equipment is already installed, connected and in service, and it 
is determined advantageous to purchase it; where items are 
subject to rapid price fluctuation or immediate acceptance; 
where there is evidence of resale price maintenance or other 
control of prices, lawful or unlawful, or collusion on the part 
of companies which thwarts normal competitive procedures; 
where the amount of the purchase is too small to justify 
soliciting competition or where a purchase is being made and a 
satisfactory price is available from a previous contract; where 
the requirement is for an authorized cooperative project with 
another governmental unit(s) or a charitable non-profit 
organ ization(s); and where a used item{s) is available on short 
notice and subject to prior sale. 

History- Note: Authority- G.S. 143-53: 
Eff. February- 1 . 1976: 
Readopted Eff. February 27, 19''9: 
Amended Eff. April L 1999j_ February 1. 1996. 

.1402 APPROVAL AND DOCUMENTATION 

Although competition may be waived pursuant to Rule 
.1401 of this Section, its use is required wherever practicable. 
Where waiver is contemplated, agencies may negotiate with a 
potential vendor(s) in an effort to acquire the quality of 
commodity, service or printing needed at the best possible 
price, delivery, terms and conditions, when the expenditure is 
less than their respective benchmark or delegation. A 
solicitation document requesting or inviting an offer(s) shall be 
issued b\ the agency, including standard language, terms and 
conditions issued by the Division of Purchase and Contract. 
Under an emergency or pressing need situation, a solicitation 
document requesting or inviting an offer(s) shall be issued by 
the agency, including standard language, terms and conditions 
issued by the Division, unless circumstances prohibit their use. 
Negotiations may also be conducted with a potential vendor(s) 
for contracts exceeding an agency's benchmark or delegation, 
but are subject to the conditions of Rule .1518 of this 
Subchapter, except where otherwise permitted by rule. 

HistoiyNote: Authority- G.S. 143-53: 
Eff. February 1. 1976: 
Readopted Eff. Februaiy 27. 1979: 



Amended Eff. April 1, 1999: February 1. 1996: July- 1. 1987. 
SECTION .1500 - MISCELLANEOUS PROVISIONS 

.1501 CONFIDENTIALITY 

(a) Trade secrets which the offeror does not wish disclosed 
shall be identified as follows; Each page shall be identified in 
boldface at the top and bottom as "CONFIDENTIAL". Cost 
information shall not be deemed confidential. 

(b) To promote maximum competition and to protect the 
public competitive procedure from being used to obtain 
information which would normally not be available otherwise, 
the agency which issued the solicitation document may 
maintain the confidentiality of certain types of information. 
Such information includes trade secrets, as determined by 
North Carolina law. and like information as the SPO or the 
agency's executive officer or the officer's designee may 
determine to insure the integrity of the public purchasing 
process. 

History- Note: Authority- G.S. 143-52: 143-53: 
Eff. February 1, 1976: 
Readopted Eff. February 27, 1979: 
Amended Eff April L 1999: February 1. 1996. 

.1505 FUNDS FROM DIFFERENT SOURCES 

(a) All public funds irrespective of source, whether special, 
federal, local, gifts, bequests, receipts, fees, or State 
appropriated, used for the purchase, rental, lease, installment 
purchase and lease/purchase of commodities, printing and 
services shall be handled under the provisions of Article 3 of 
G.S. 143 and in accordance with rules adopted pursuant 
thereto by the Division of Purchase and Contract. 

(b) Rules applying to service, rental, lease, and printing 
contracts do not apply to local school administrative units or 
community colleges. 

History Note: Authority G.S. 143-53: 143-60(5): 
Eff. February 1 , 1976: 
Readopted Eff. Februaiy 27. 19 79: 
Amended Eff. April 1, 1999: February 1. 1996. 

1509 PURCHASING FROM OR THROUGH 
AGENCY EMPLOYEES 

Every reasonable effort shall be made to avoid making 
purchases from or through employees of any agency. Prior 
written approval from the SPO is required in any instance 
which may develop of doing business with such personnel. In 
deciding whether to grant approval, the SPO shall consider the 
type item or service needed, the prevailing market conditions, 
whether competition is available, the cost involved, and the 
effects of doing business with the employee. 

Histoiy Note: Authority G.S. 143-53: 143-60(5): 

Eff February 1, 1976: 

Readopted Eff. February 27. 1979: 

Amended Eff .April L 1999: February I, 1996: July I. 1987. 



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.1512 AVAILABILITY OF SERVICES TO CERTAIN 
NON-STATE AGENCIES 

(a) The Division of Purchase and Contract shall make 
purchasing services available to certain non-State agencies as 
defined by G.S. 143-49 and 143-49. 1 . This may be affected by 
budgetary allowances for personnel, time and related costs. 

(b) Where a non-State agency covered by this provision 
elects to participate in a contract, its resulting contractual 
duties, obligations and responsibilities shall be the same as 
those required for agencies. Non-State agencies covered by 
this provision shall make payments to suppliers in a timely 
manner and in accordance with the terms of the contracts. 

(c) As may be practicable in terms of personnel, time and 
costs, the Division may offer its services, in addition to 
purchasing and contracting, to non-State agencies with respect 
to preparing specifications and contracts for services, 
inspecting and testing of products, expediting deliveries and 
advising as to market conditions. 

Histoty Note: Authority G.S. 143-49(6): 143-49.1: 143-52: 

Eff. Febniaiy 1. 1976: 

Readopted Eff Fehnian- 27. 1979: 

Amended Eff. April L 1999: February 1. 1996: July 1. 1987. 

.1518 BOARD OF AWARD 

(a) When the dollar value of a contract for the purchase, 
lease, or lease/purchase of commodities or printing exceeds the 
agency's benchmark or delegation, the Board of Award 
(Board) shall canvass the Division's recommended action. This 
also includes reporting of emergency and pressing need 
purchases over the agency's benchmark or delegation. The 
Division shall submit the Board's recommendation (award, 
cancellation, approval, negotiation, etc.) to the Secretary. The 
Secretary may either concur with the recommendation of the 
Board by awarding contracts or approving other recommended 
action, c" take other action as deemed necessary. A Board of 
Award meeting shall be comprised of at least two voting 
members. The SPO or designee shall conduct the meeting and 
one Division employee shall take the minutes of the meeting. 
The Advisory Budget Commission may designate two or more 
voting members to serve as members of the Board. The SPO 
may further designate the following persons who may serve in 
this capacity in the absence of member(s) of the Commission: 

(1) Assistant Superintendent for Financial Services, 
Department of Public Instruction; 

(2) Representative from Attorney General's Office; 

(3) All Council of State members with the exception of 
the Governor. 

These alternate members shall not further delegate this 
responsibility. 

(b) Records shall be kept of each meeting and made public 
by the SPO unless there is statutory authority for keeping the 
record for a specific purchase confidential, and if so, that 
record shall be kept confidential. The Secretary may elect to 
proceed with the award of contracts without the 
recommendation of the Board in cases of emergencies or in the 
event that a Board is not available. In such cases, contracts 
awarded without Board review shall be reported to a 



subsequent Board as a matter of record. 

(c) Exemptions: Approval by the Secretary is not required 
for the following purchase actions: exemption by statute, by 
rule, by special delegation, or where one agency is buying 
from another agency or through the State Surplus Property 
Agency or the State Agency for Federal Surplus Property. 

History Note: Authority^ G.S. 143-53: 143-318.18(10): 
Eff. Februaiy 1, 1996: 
Amended Eff. April L 1999. 

.1519 PROTEST PROCEDURES 

(a) To insure fairness to all offerors and to promote open 
competition, agencies and the Division of Purchase and 
Contract shall actively follow-up and be consistent in 
responding to an offeror's protest over contract awards. 

(b) This Rule applies only to contracts with an actual or 
estimated dollar value over ten thousand dollars ($10,000). 
Agencies may establish procedures to handle an offeror's 
concerns for contracts with less dollar value. 

(c) When an offeror wants to protest a contract awarded by 
an agency over ten thousand dollars ($10,000) in value, the 
agency and the offeror shall comply with the following: 

(1) The offeror shall submit a written request for a 
protest meeting to the agency's executive officer 
which shall be received by the agency's executive 
officer's office within 30 consecutive calendar days 
from the date of the contract award. The executive 
officer shall furnish a copy of this letter to the SPO 
within five consecutive calendar days of receipt. 
The offeror's letter shall contain specific reasons 
and any supporting documentation for why it has a 
concern with the award. If the letter does not 
contain this information, or if the executive officer 
determines that a meeting would serve no purpose, 
then the executive officer may, within 10 
consecutive calendar days from the date of receipt of 
the letter, respond in writing to the offeror and 
refuse the protest meeting request. A copy of the 
executive officer's letter shall be forwarded to the 
SPO. 

(2) If the protest meeting is granted, the executive 
officer shall attempt to schedule the meeting within 
30 consecutive calendar days after receipt of the 
letter, or as soon as possible thereafter. Within 10 
consecutive calendar days from the date of the 
protest meeting, the executive officer shall respond 
to the offeror in writing with the executive officer's 
decision. A copy of the executive officer's letter 
shall be forwarded to the SPO. 

(3) The agency shall notify the SPO in writing of any 
further administrative or judicial review of the 
contract award. 

(4) The executive officer may appoint a designee to act 
on the executive officer's behalf under this Rule. 

(d) When an offeror wants to protest a contract awarded by 
the Secretary over ten thousand dollars ($10,000) in value, the 
SPO and the offeror shall comply with the following: 



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(1) The offeror shall submit a written request for a 
protest meeting to the SPO which shall be received 
by the Division within 30 consecutive calendar days 
from the date of the contract award. The offeror's 
letter shall contain specific reasons and any 
supporting documentation for why it has a concern 
with the award. If the letter does not contain this 
information, or if the SPO determines that a meeting 
would serve no purpose, then the SPO may. within 
10 consecutive calendar days from the date of 
receipt of the letter, respond in writing to the offeror 
and refuse the protest meeting request. 

(2) If the protest meeting is granted, the SPO shall 
attempt to schedule the meeting within 30 
consecutive calendar days after receipt of the letter, 
or as soon as possible thereafter. Within 10 
consecutive calendar days from the date of the 
protest meeting, the SPO shall respond to the offeror 
in writing with the SPO's decision. 

HistoiT Note: Authority G.S. 150B-2: 1508-22: 150B-25: 

143-53: 

Eff February 1. 1996: 

Temporar}' Amendment Eff. February 15. 1998: 

Amended Efi: April L 1999. 

.1520 DEFAULT PROCEEDINGS; DEBARMENT 

(a) The agency which issued the solicitation document 
resulting in the contract may find a contractor in default of 
contract for failing to perform in accordance with the contract 
requirements, terms and conditions. If a contractor is found in 
default of contract, the agencv which issued the solicitation 
document resulting in the contract may take action, immediate 
if necessary, to purchase the needed commodities, printing or 
services on the open market and charge any additional cost for 
the commodities, printing or services and expense for doing so 
to the defaulting contractor. If an agency finds a contractor in 
default, such action and the circumstances shall be reported by 
the agency to the Division of Purchase and Contract in writing. 
This does not limit any other remedies that may be available to 
the State or agency. 

(b) The Division may remove the contractor from any 
mailing lists which may be utilized and debar the contractor 
from doing business with the agency, or any agency, for a 
period of time at the discretion of the Division. 

History Note: Authorit}- G.S. 143-49: 143-52: 143-53: 143- 

60: 

Eff. February 1, 1996: 

Amended Eff] April 1 , 1999. 



(1) purchase of liquor; 

(2) perishable articles such as fresh meats; 

(3) published books, manuscripts, subscriptions to 
printed material, packaged copyrighted software 
products, and like material; 

(4) services provided by individuals by direct 
employment contracts with the State; 

(5) public utility services (gas, water and electricity); 

(6) telephone, telegraph and cable services furnished by 
those companies; 

(7) services provided which are subject to published 
tariff rates as established by the North Carolina 
Utilities Commission; 

(8) services which are merely incidental to the purchase 
of supplies, materials or equipment such as 
installation services; 

(9) contracts for construction of and structural changes 
to public buildings; 

(10) personal services provided by a professional 
individual (person) on a temporary or occasional 
basis, including (by way of illustration, not 
limitation) those provided by a doctor, dentist, 
attorney, architect, professional engineer, scientist or 
performer of the fine arts and similar professions; 
the exemption applies only if the individual is using 
his/her professional skills to perform a professional 
task; a personal service may also be a consulting 
service; 

(11) services provided directly b> an agency of the State, 
federal or local government, or their employees 
when performing the service as a part of their 
nonnal governmental function. 

(b) In addition to products and services exempted by 
statute, the SPO may exempt other products and services from 
purchase through the Division provided that the SPO makes 
findings: 

(1) that competition will not enhance the price that the 
State would receive for the product or service; and 

(2) that competition will not enhance the quality of the 
product or service that the State would receive. 

(c) Contracts for bakerv products and dairy products shall 
be awarded through the Division of Purchase and Contract, if 
over the agency's expenditure benchmark. 

History Note: Authority CJ.S. ~A-6(B): 143-53: 143-56: 143- 

62: 

Eff: Februaty 1. 1976: 

ReadoptedEff: Februaty 27, 1979: 

Amended Eff. .April 1, 1999: Februaty 1. 1996: May 1. 1988: 

Julv 1. 1987. 



SECTION .1600 - EXEMPTIONS, EMERGENCIES 
AND SPECIAL DELEGATIONS 

.1601 EXEMPTIONS 

(a) Except as provided in Paragraph (c) of this Rule, it is 
not mandatory for the items and services listed in this Rule to 
be purchased through the Division of Purchase and Contract. 



.1602 EMERGENCIES 

(a) An agency may make purchases of commodities, 
printing or services in the open market in cases of emergency 
or pressing need. For this purpose, a pressing need is one 
arising from unforeseen causes including, but not limited to. 
delay by contractors, delay in transportation, breakdown in 
machinerv. or unanticipated volume of work while 



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emergencies are defined as situations which endanger lives, 
property or the continuation of a vital program and which can 
be rectified only by immediate, on-the-spot purchases or rental 
of commodities, printing or services. 

(b) Agencies may negotiate with a potential vendor(s) in an 
effort to acquire the quality of commodity, service or printing 
needed at the best possible price, delivery, terms and 
conditions. A solicitation document requesting or inviting an 
ofter(s) shall be issued, including standard language, terms and 
conditions issued by the Division of Purchase and Contract, 
unless circumstances prohibit their use. 

(c) When emergency or pressing need action is necessary, 
and the expenditure is over the agency's benchmark or 
delegation, prior verbal approval shall be obtained from the 
Division if time permits. Subsequently, whether or not such 
prior approval was possible, if the expenditure is over the 
agency's benchmark or delegation, an explanation of the 
emergency or pressing need purchase shall be reported in 
writing to the Division. The Division shall report such 
purchases of commodities and printing to the Board as a matter 
of record. 

Histon'Note: Authority G.S. 143-53: 143-57; 143-60: 
Effi February I. 1976: 
ReadoptedEff. February 27. 1979: 
Amended Eff. April L 1999: Fehruaiy 1, 1996. 

.1603 SPECIAL DELEGATIONS 

(a) The SPO may authorize, by special delegation, any 
agency to purchase specific commodities, printing or services 
without limitation as to expenditure. Such delegation is 
normally confined, but not limited to, commodities, printing or 
services which by their nature or circumstance, such as 
perishableness, transportation costs, local conditions or local 
availability, would result in handling by the Division of 
Purchase and Contract serving no practical purpose. Ever>' 
such delegation shall be in writing and made a matter of 
record. 

(b) The SPO may require that offers received under such 
delegations be sent to the Division for determination of the 
successful vendor. 

(c) The Division shall periodically review its special 
delegations of purchase to ascertain the availabilitv of these 
commodities, printing or services and their continued 
suitability for delegation. 

Hisloiy Note: Authority G.S. 143-53: 

Eff. Februaiy 1 . 19-^6: 

ReadoptedEff. February 27. 19^9: 

Amended E1l April 1. 1999: FebruaiT 1. 1996: July 1, 1987. 

.1604 GENERAL DELEGATIONS 

The general purchasing delegation for agencies (except for 
the universities) shall be not more than ten thousand dollars 
($10,000). Tbe SPO may lower or raise this general delegation 
for a specific agency, up to the amount established by G.S. 
143-53.1, after consultation with the State Budget Officer and 
the State Auditor for State agencies, and upon consideration of 



the agency's (except for the universities) overall capabilities, 
including staff resources, organizational structure, training, 
purchasing compliance reviews, electronic communication 
capabilities, and audit reports. If an agency wishes to obtain 
an increase in its general delegation, it shall submit a request in 
writing, outlining its overall capabilities, to the SPO for the 
SPO's consideration. 

History- Note: Authority G.S. 143-53: 
Temporary Adoption Eff. Februan.' 15, 1998: 
Eff. April 1. 1999. 

.1605 COMPLIANCE REVIEWS 

(a) The Division of Purchase and Contract shall conduct 
compliance reviews on purchasing practices at all agencies. 
The purpose of the compliance review shall be for determining 
if an agency is complying with North Carolina's purchasing 
statutes and rules adopted thereunder, and whether it should 
continue having the same level of delegation, have it reduced, 
or if it qualifies for an increase. A copy of the compliance 
report shall be provided to the agency's executive officer, the 
State Auditor, the State Budget Officer, the local school 
administrative unit's Board, any of which are applicable. 

(b) The Division's staff may enter the premises and obtain 
an agency's purchasing records for the purpose of the 
compliance review. The agency shall cooperate with the 
Division's staff, providing them with requested records, 
adequate office space for conducting the review, and agency 
purchasing staff for discussion of purchase transactions. The 
Division shall not unnecessarily require of the agency any 
more than is needed to complete the review. 

(c) The SPO may lower, or raise if requested, an agency's 
(excluding the universities) general delegation, if the results of 
a compliance review by the compliance staff of the Division 
merit such action as determined by the SPO. The SPO may 
lower the delegation to any level, including the complete 
removal of the delegation, depending on the nature of any 
violations found. The SPO shall report to the University's 
Board of Governors the results of an\ compliance review 
conducted at any of the universities, and shall provide to them 
the SPO's recommendation, based on those results, on what 
that university's benchmark should be. 

(d) The SPO shall provide to each agency, upon request, the 
Division's assistance in educational training for the agency's 
staff, to better acquaint them with the purchasing statutes and 
rules. 

HistmyNote: Authoriry G.S. 143-53: 
Eff. April 1. 1999. 

SECTION .1900 - RECORDS OF THE DIVISION 
OF PURCHASE AND CONTRACT 

.1901 RECORD MAINTENANCE 

Except where State law provides to the contrarv'. after the 
award of a contract, the purchasing records of an agency are 
public documents, and these documents shall be maintained 
for a period of five years after the expiration date of the 



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contract. 

History Note: Authority G.S. 143-53: 1438-10(0: 

Eff. Fehriiaiy 1, 1976: 

Readopted Eff. February 27. 19" 9: 

.Attiended Eff' April L 1999; Fehruaiy 1. 1996. 

.1903 FILES 

(a) Each contract file shall be identified individually so it 
can be readily located and referenced. 

(b) All purchase transactions shall be documented. As 
applicable, each file shall include: 

( 1 ) Original offers if in writing, or written 
documentation of verbal offers received; 

(2) Reasons for award or cancellation; 

(3) Worksheets/evaluations; 

(4) Mailing list, if used; 

(5) Written justification for waiver or emergency 
purchase: 

(6) Tabulation of offers received; 

(7) Copy of purchase order(s); 

(8) Related correspondence; 

(9) Reason(s) for receiving only one offer in response to 
a solicitation; 

(10) Negotiated contracts; and 

(11) Reasons for not accepting technical proposals. 

(c) After award of contract all material in the file, except 
confidential infomiation, shall be open to interested persons 
during normal office hours, may be hand copied, or copies 
shall be furnished in accordance with the Public Records Act. 

History Note: Authority' G.S 143-53: 143B-10{f): 

Eff. February 1. 1976: 

Readopted Eff. February 27. 1979: 

Amended Eff. .April L 1999: Fehruaiy 1. 1996: July 1. 1987. 

CHAPTER 15 - COMMISSION OF INDIAN 
AFFAIRS 

SECTION .0200 - LEGAL RECOGNITION 
OF INDIAN GROUPS 

.0202 ORGANIZATIONAL ASSISTANCE 

When a group of Indians has identified themselves they 
shall request organizational assistance from the Commission. 
The Commission shall then explain organizational options to 
this group and assist them in developing a representative tribal 
organization. 

HistoiyNote: Authority G.S. 143B-406: 
Eff. November 1. 1976: 
.Amended Eff. April 1 , 1999. 

.0203 TRIBAL ORGANIZATIONAL OPTIONS 

(a) Each group seeking recognition shall organize itself as 
an Indian tribe, as defined in 1 NCAC 15 .0208. and shall meet 
the criteria set out in 1 NCAC 15 .0209 and .021 1. Methods 
of tribal organization acceptable to the Commission are: 



(1 ) to organize a private nonprofit corporation under the 
laws of North Carolina, or 

(2) to organize a tribal council. 

(b) Once recognized by the Commission, the tribal 
organization may represent the group both locally and at the 
Commission level. 

(c) The type of tribal organization shall be representative 
and give opportunity for all Indians in the area to be 
represented. When more than one group is involved, 
opportunity shall be given for all areas to be represented on 
either the tribal board of directors or the tribal council. 

HistoiyNote: .Authority- G.S. 143B-406; 
Eff. November 1 . 1976: 
Amended Eff. April 1, 1999. 

.0207 PROCEDURE FOR RECOGNITION 

The procedure to be followed for recognition shall be; 

( 1 ) Petitioner submits a petition as set out in Rule .0204 
of this Section to the Commission of Indian Affairs; 

(2) Commission certifies receipt and explains procedure 
to petitioner; 

(3) With assistance from the Commission, petitioner 
prepares a full application (may take up to one year), 
which is sent to the special committee on 
recognition; 

(4) Hearing before the special committee on 
recognition; 

(5) Decision is rendered by special committee on 
recognition; 

(6) If petitioner is not satisfied with the decision of the 
special committee on recognition, an appeal may be 
taken to the full Commission; 

(7) The decision by the full Commission shall be 
rendered by at least a two-thirds majorit)' of Indian 
members; 

(8) If requested, an informal hearing shall be held 
before the full Commission; 

(9) If the decision is for recognition, the group is 
recognized as an Indian tribe by the state. If the 
decision is against recognition, petitioner ma\ apply 
to the Office of Administrative Hearings for a 
formal hearing pursuant to G.S. I50B-23. 

HistoiyNote: Authority G.S. 143B-406: 150B-23: 

Eff: Fehruaiy 11. 1980: 

Amended Ejf. .April L 1999: August 1. 1988. 

.0208 TRIBAL DEFINITION 

A petitioner ma> apply to be recognized as an "Indian tribe", 
defined as population of Indian people all related to one 
another by blood, tracing their heritage to Indian tribes 
indigenous to North Carolina w ithin the last 200 years. 

HistoiyNote: .Authority G.S. 143B-406: 

Eff. Fehruaiy 1 1 . 1980: 

.Amended Eff. April 1, 1999: February 1. 1982. 



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.0211 RECOGNITION REQUIREMENT 

Only groups tracing back to Indian tribes indigenous to 
North Carolina at least for the last 200 years shall be 
considered for recognition by the Commission. 



and Natural Resources, Justice, and Transportation. From the 
list of nominees, the Secretary shall select the Committee 
members. The Committee shall consist of no less than seven 
or more than 13 members. 



Hisloiy Note: Authority G.S. 143B-406: 
Eff. February U . WHO: 
Amended Eff. April L 1999. 

.0214 TRIBAL ROLL 

Each petitioning group must submit to the Commission a 
roll of its members as a condition to recognition. The roll shall 
list the names and addresses of the people and relate each one 
to their kinship ties. This roll must be submitted prior to the 
recognition decision of the Commission of Indian Affairs. 

HistoiyNole: Authority G.S. I43B-406: 

Eff. February 11. 1980: 

Amended Eff. April h 1999: August 1. 1988. 

CHAPTER 25 - NORTH CAROLINA 
ENVIRONMENTAL POLICY ACT 

SECTION .0200 - NCEDP ADMINISTRATION/ 
ENVIRONMENTAL IMPACT 

.0212 ENVIRONMENTAL BULLETIN 

(a) The Environmental Bulletin shall be published tv\'ice a 
month b\ the Clearinghouse and shall contain notice of any 
filing with the Department of any environmental document, 
request for establishment of minimum criteria, or other 
documents and decisions as set out by this Chapter. 

(b) The Environmental Bulletin shall be made available to 
all review agencies and shal] be available to local 
governments, institutions, and individuals upon request. 

(c) The Environmental Bulletin shall be available on the 
Internet at wvvvv.doa. state. nc.us/doa/clearing/ebnet. htm. 
Notices of Availability of documents received for review and 
comment shall be added dail> to the Environmental Bulletin at 
this website. 

History Note: .Authority- G.S. I3A-1I: 
Eff. February 1. 1986: 
Amended Eff. April 1. 1999. 



.0213 



ACT 



ENVIRONMENTAL POLICY 

ADVISORY COMMITTEE 

(a) The Secretary of the Department of Administration or a 
person so designated by the Secretary, shall serve as the Chair 
of the Environmental Policy Act Advisory Committee. 

(b) The purpose of the Committee is to provide technical 
advice to the Secretary of the Department on environmental 
issues related to the NCEPA. 

(c) The Secretary shall solicit nominations for the 
Committee from those state departments and other 
organizations most involved in environmental protection. 
These include but are not limited to. the Departments of 
Cultural Resources, Health and Human Services. Environment 



History Note: Author in' G.S. 113A-11: 

Eff. February 1. 1986: 

Amended Eff April L 1999: May 3. 1993. 

SECTION .0300 - MINIMUM CRITERIA 

.0301 MINIMUM CRITERIA 

(a) State agencies may choose to establish specific 
minimum criteria designating minimum levels of 
environmental impact. Once these criteria have been 
approved, no filing of environmental documents shall be 
required for projects whose impacts do not exceed the criteria 
thresholds. 

(b) If an agency establishes minimum criteria, the agency 
shall review the criteria every five years and revise them as 
necessary. 

(c) All proposed minimum criteria and revisions to minimum 
criteria shall be approved by the Secretar>' of Administration 
prior to an agency's publication of Notice of Text under G.S. 
150B establishing or revising such minimum criteria. 

History Note: Authority G.S. 113A-11: 
Eff. February 1, 1986: 
Amended Eff. April 1, 1999. 

.0302 APPROVAL OF CRITERIA 

The following procedures shall be used to gain approval of 
minimum criteria: 

( 1 ) The agency shall prepare a draft list of the minimum 
criteria, describing the ease of measuring the 
criteria, and how the criteria predict the 
environmental impact of projects. The agency shall 
submit these lists to the Clearinghouse for 
circulation and review. 

(2) Upon receipt of these lists from the agencN', the 
Clearinghouse shall: 

(a) solicit written comments on the criteria from 
interested parties or agencies having expertise 
or jurisdiction by law, and shall publish a 
notice of the criteria in the Environmental 
Bulletin. The period of review is 30 calendar 
days from the date of publication in the 
Environmental Bulletin; and 

(b) reviev\ the criteria to ensure the> are 
consistent with Department of Administration 
rules and make any necessary 
recommendations to the agency as to 
consistency. 

(3) If there are no written comments and the criteria are 
consistent with Department of Administration rules, 
the criteria shall be approved by the Secretary of 
Administration. 

(4) If there are any written comments on the criteria, the 



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Clearinghouse shall forward all those received to the 
submitting agency. along with any Clearinghouse 
recommendations as to consistency. 

(5) The agency shall consider all written comments and 
decide whether to submit a revised list of minimum 
criteria to the Clearinghouse or whether to continue 
with its original list. 

(a) If the agency submits a revised list, the new 
list of criteria shall follow the same procedure 
for solicitation of comments, publication of 
notice, and consistency review as did the 
original list. This process shall be continued 
until the agency decides it no longer wishes to 
make further amendments to its proposed 
criteria, or until no further written comment is 
received. 

(b) If the agency decides to continue with its 
original list or no longer wishes to amend its 
list as provided for in Rule .0302(5)(a) of this 
Section, it shall notify the Clearinghouse of 
that decision. 

(6) The Clearinghouse shall recommend to the Secretary 
of Administration approval or rejection of the final 
list of minimum criteria based on the consideration 
of all written comments and the criteria's 
consistency. 

(7) The Clearinghouse shall notify the agency of the 
Secretary's approval or rejection of its proposed 
final list of minimum criteria. 

History Note: A iithority G. S. 1 1 3.4- II: 

Eff. February 1. 1986: 

Amended Eff. .April L 1999: May i, / 993. 

.0303 REVISION OF CRITERIA 

The same process cited in Rule .0302 of this Section for 
initial adoption of minimum criteria shall be followed by 
agencies seeking to revise those minimum criteria. 



Eff. February I. 1986: 
Amended Eff. .4pril I. 1999. 

SECTION .0500 - ENVIRONMENTAL ASSESSMENT 

.0506 REVIEW PROCESS 

(a) The State Project Agency must submit 16 copies of the 
EA and FONSI to the Clearinghouse, and any additional 
copies as may be requested. The Clearinghouse shall circulate 
these documents to state and local officials to obtain comments 
and shall publish a Notice of Availability in the Environmental 
Bulletin. In order to have a Notice of Availability published in 
the Environmental Bulletin, the documents must be submitted 
to the Clearinghouse no later than noon on the Friday 
preceding the publication date of the Bulletin. Reading copies 
shall be made available at the Clearinghouse for any interested 
parties. The review period is 30 calendar days after 
publication in the Bulletin. 

(b) Each reviewing agency and any interested party may 
make comments on the adequacy of the documents. 

(c) Based on consideration of the comments submitted, the 
Clearinghouse shall advise the State Project Agency as 
follows: 

( 1 ) the document has been determined to lack sufficient 
information. Supplemental documentation which 
provides adequate information should be submitted 
to the Clearinghouse for review and comment; 

(2) the document does not satisfy' a finding of no 
significant impact and an EIS should be prepared: 

(3) the document is adequate and the ne.\t appropriate 
level document should be prepared for review: or 

(4) the document is adequate and completes the review 
process requirements for the act. 

(d) The State Project Agency may adopt or reject the 
Clearinghouse's recommendation. 

(e) No administrative or judicial review is permitted unless 
undertaken in connection with review of the agency action. 
No other review of an environmental document is permitted. 



History Note: A iithority G.S. 113.4-11 : 
Eff. February I. 1986: 
Amended Eft: .4pril 1 . 1999. 



Histoiy Note: A iithority G. S. 113A-11: 

Eff. February 1. 1986: 

.Amended Eff .4j)ril L 1999: May 3. 1 993. 



SECTION .0400 - COMPLIANCE 

.0402 DOCUMENT UNDER NEPA DEEMED 
ADEQUATE 

if an environmental document is prepared under the 
provisions of the National Environmental Policy Act (NEPA) 
for a specific activity, and if that document is reviewed 
through the Clearinghouse process, then this review shall 
constitute compliance with the requirements of this Chapter 
for that activity. If a specific activity has been designated as 
categorically excluded from the provisions of the National 
Environmental Policy Act, then the requirements of this 
Chapter shall have been met for that activity. 

History Note: A iithorit\- G. S. 113A-II: 



SECTION .0600 - ENVIRONMENTAL IMPACT 
STATEMENTS 

.0602 SCOPING 

If an agency detemiines that an EIS is required on a project, 
it may choose to request advice from the general public and 
other agencies on what alternatives and issues should be 
addressed in the EIS. The agency must submit a copy of a 
scoping notice to the Clearinghouse, which shall publish the 
scoping notice in the Environmental Bulletin. The comment 
period shall be 30 calendar days after publication in the 
Bulletin. 

Histoiy Note: Authority G.S. I13A-11: 
Eff. Febriiaiy 1. 1986: 



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Amended Eff. April L 1999: May 3. 1 993. 

.0603 FORMAT AND CONTENT 

Agencies shall use a format for EIS's which will encourage 
good analysis and clear presentation of all alternatives, 
including the proposed activity' while minimizing length and 
complexity. These documents shall not exceed 60 pages and 
shall include 8 V2" x 11" site location maps. The document 
shall include the following: 

(1) A single cover sheet including the following 
information: 

(a) designation of the document as a draft, 
supplementary or final statement; 

(b) title of the proposed activity that is the subject 
of the statement; 

(c) list of any involved cooperating agencies; and 

(d) name, address, and telephone number of the 
person in the State Project Agency who can 
supply further information. 

(2) An accurate summary of the statement stressing the 
major conclusions, areas of controversy, and issues 
to be resolved. The summary shall also list all 
federal, state, and local permits, licenses, 
certifications, and other approvals which must be 
obtained in implementing the proposal. If there is 
any uncertainty about whether any one of these is 
necessary, it shall be so indicated. 

(3) Purpose and Need. The underlying purpose and 
need being responded to by the proposed activity. 

(4) Alternatives including proposed activity. Based 
upon information and analysis presented in Items (5) 
through (8) of this Rule on the affected environment 
and environmental consequences, the agenc) shall 
present the environmental impacts of the alternatives 
including the proposed activity in comparative form. 
To the extent possible the comparison of alternatives 
shall quantify how the purpose and need would be 
satisfied by each alternative and the proposed 
activity. This section of the document shall be the 
heart of the EIS. sharply defining the issues and 
providing a clear basis for choice among options by 
decision makers and the public. It shall also: 

(a) explore and evaluate all reasonable 
alternatives, including those not within the 
jurisdiction of the State Project Agency and 
the alternative of no action; 

(b) discuss the reasons for the elimination of 
alternatives from detailed 

stud\; 

(c) identity' the agency's preferred altemative(s) 
in the draft statement and identify such 
alternatives in the final statement, unless 
another law prohibits the expression of such a 
preference; 

(d) include appropriate mitigation measures not 
already included in the alternatives; and 

(e) assess the social and economic impacts of 
each alternative. Impacts shall be quantified 



(5) 



(6) 



(7) 



(8) 



(b) 
(c) 
(d) 



(e) 



(f) 



for each alternative, where feasible, but when 
quantification by standard economic tools is 
not feasible or intangibles are involved, a 
description of each impact is required. 
Affected Environment. The EIS must describe the 
environment of the area(s) to be affected and the 
environment to be created by the alternatives under 
consideration. The description shall be no longer 
than is necessary to understand the effects of the 
alternatives. Data and analysis in a statement shall 
be commensurate with the importance of the impact, 
with less important material summarized, 
consolidated, or simply referenced. 
Environmental Consequences. This section of the 
document shall form the scientific and analytic basis 
for the comparisons under Item (4) of this Rule. It 
shall include: 

(a) direct effects and significance; 
indirect effects and significance; 
cumulative effects and significance; 
the relationship between the short-term uses 
of the environment involved in the proposed 
action and the maintenance and enhancement 
of long-term productivity ; 
any irreversible and irretrievable 
environmental changes which would be 
involved in the proposed action should it be 
implemented; and 

possible confiicts between the proposed 
activities and the objectives of federal, state, 
and local plans, policies, and controls for the 
affected area. 
List of Preparers. The EIS shall list the names and 
qualifications of the persons who were primarily 
responsible for preparing the EIS. 
Appendix. If an appendix is included in an EIS. it 
shall meet the following requirements: 

(a) consist of materials substantiating any 
analysis fundamental to the principal 
document, as distinct from material of lesser 
significance that may accompany the 
document or be incorporated by reference; 

(b) be analylic and relevant to the decision to be 
made; 

(c) not be counted in the EIS 60 page limit; and 

(d) be circulated with the EIS or be readily 
available upon request. 



HistotyNote: Authority G.S. 113.4-11: 

Eff. Febntaiy 1. 1986: 

Amended Eff. April L 1999: May 3. 1993. 

.0605 REVIEW PROCESS 

(a) Draft EIS. Sixteen copies and any additional copies as 
ma>' be requested shall be submitted by the State Project 
Agency and circulated for comment by the Clearinghouse as 
set out in Rule .0506 of this Chapter A Notice of Availability 
of the EIS shall be printed in the Environmental Bulletin, and a 



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45 calendar-day period of review after this notice is published 
shall be allowed. 

(b) The Clearinghouse shall forward copies of all comments 
made by reviewers to the State Project Agency for 
incorporation in the final document. 

(c) Final EIS. The State Project Agency shall submit 16 
copies of the final EIS and any additional copies as may be 
requested to the Clearinghouse. These documents shall be 
circulated to the original reviewers for a final review. Notice 
shall also be given in the Environmental Bulletin. Thirty 
calendar days after publication of the Bulletin shall be allowed 
for final review. 

(d) Based on consideration of the comments submitted, the 
Clearinghouse shall advise the State Project Agency as 
follows: 

( 1 ) the document has been determined to lack sufficient 
information. Supplemental documentation which 
provides adequate information should be submitted 
to the Clearinghouse for review and comment; 

(2) a final EIS should be prepared for review addressing 
the comments submitted; or 

(3) the document is adequate and completes the review 
process requirements for the act. 

(e) The State Project Agency may adopt or reject the 
Clearinghouse's recommendation. 

(f) No administrative or judicial review is permitted unless 
undertaken in connection with review of the agency action. 
No other review of an environmental document is permitted. 

History Note: A uthority- G.S. 113.4-11 ; 

Eff. February 1, 1986: 

Amended Eff. April L 1999: May 3. 1 993. 

CHAPTER 30 - STATE CONSTRUCTION 

SUBCHAPTER 30F - STATE BUILDING 

COMMISSION CONTRACTOR 

EVALUATION PROCEDURES 

SECTION .0300 - EVALUATION OF 
CONTRACTORS 

.0305 EVALUATION REVIEW 

(a) SCO shall maintain contractor evaluation data. This 
data shall be maintained on an individual job basis, and shall 
also be maintained cumulatively by contractor (based on 
contractor license number). The contractor evaluation data 
shall be that information prepared by the Capital Projects 
Coordinator during the evaluation process set forth in this 
Subchapter. All numerical ratings shall be given pursuant to 
Rule .0302 of this Section and shall evaluate those phases of 
the work set out in Rule .0301 of this Section; the form called 
for in Rule .0103(8) of this Subchapter shall be used 
exclusively for this purpose. 

(b) The data maintained by the SCO shall reflect 
performance history for a period of five years. All evaluation 
data on completed projects over five years old shall be 
removed from SCO files and shall not be used as a factor in 



the cumulative evaluation. 

(c) A contractor whose cumulative evaluation falls below a 
mark of 3.5 shall be determined to have provided an 
unsatisfactory level of performance and may not be allowed to 
bid on or serve as a sub-contractor on State capital 
improvement projects during a corrective period. All 
references to pre-bid disqualification status in this Section 
shall also be considered to apply to disqualification of a prime 
contractor to serve as a sub-contractor on State capital 
improvement projects during the disqualification period. 

(d) To be utilized for pre-bid disqualification, a prime 
contractor's cumulative evaluation must be based on a 
minimum of three evaluations on at least three separate capital 
projects. Further, if a contractor is assigned a single final 
evaluation of 2.5 or lower, this action alone shall be sufficient 
to call the contractor's performance into question and may 
result in pre-bid disqualification during a corrective period. 

(e) In both instances, i.e., a cumulative mark falling below 
3.5 or a single evaluation of 2.5 or lower, the SCO shall 
convene a panel of five persons to review the evaluation and 
make a recommendation to the SBC. (A single final 
evaluation of 2.5 or lower, when applied to the cumulative 
total, shall not initiate further immediate review if it causes the 
cumulative rating to fall below 3.5.) The panel shall consist of 
three design/construction professional State employees of 
which a minimum of one employee shall be a licensed 
architect or engineer as appointed by the Director of State 
Construction and two members of the SBC as appointed by the 
Chairman of the Commission of which a minimum of one shall 
be a licensed contractor. 

(0 The panel may recommend to the State Building 
Commission either of the following actions as a result of its 
review: 

(1) disqualification of the contractor from bidding and 
placement of the contractor in a pre-bid 
disqualification status for a corrective period of two 
years; 

(2) rejection of disqualification but issuance of a 
warning to the contractor that continued poor 
performance may result in disqualification. 

The SCO shall retain file copies of the ratings, 
disqualifications and warnings. 

(g) In all instances, notification of a contractor having been 
assigned to a pre-bid disqualification status or having been 
issued a warning shall be by the Chairman of the State 
Building Commission and only then after review and approval 
by the Commission of the disqualification or warning action. 

(h) The disqualification as approved by the Commission 
shall be for a period of two years. The two-year period is 
intended to provide opportunity for a contractor to implement 
significant corrective action to improve performance. At the 
completion of the two-year period, the prime contractor may 
make application for reinstatement to the qualified bidders list; 
reinstatement shall be subject to action by the SBC. In the 
application for reinstatement, the contractor shall set out the 
improvements that have been made to correct the specific areas 
in which the contractor was scored below 3.5 in its cumulative 
evaluation. If the improvements listed and the investigation of 



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1399 



APPROVED RULES 



the contractor made by the SBC are such that the Commission 
forecasts the contractor's performance would be 3.5 or above 
if reinstated, then the SBC shall reinstate the contractor to the 
qualified bidders list, if the SBC approves reinstatement, the 
contractor's pre-bid disqualification shall be removed, thus 
allowing the contractor to bid. 

(i) Removal of a contractor from the pre-bid 
disqualification status, upon approval by the SBC, shall 
involve deletion of all evaluations from the State Construction 
Office's records. 

(j) If a contractor has been removed from the qualified 
bidders list by virtue of accumulated evaluations falling below 
3.5 and routine removal of five-year old evaluations causes the 
contractor to achieve an overall evaluation score of 3.5 or 
higher, the contractor shall not be automatically reinstated to 
the qualified bidders list but rather must remain in a 
disqualified status for a total of two years with reinstatement 
considered by the SBC as outlined in this Rule. If after the 
two-year corrective period the SBC does not approve removal 
of a contractor from the pre-bid disqualification status, the 
prime contractor may reapply after a period of 12 months and 
annually thereafter until the pre-bid disqualification status is 
removed. 

(k) Lists of all contractors who are in a pre-bid 
disqualification status shall be maintained by the SCO. Prior 
to bid opening, the project designer shall obtain from the SCO 
a list of those contractors in a pre-bid disqualification status 
and shall ensure that no bids for State capital improvement 
projects shall be read from a contractor in such status. 

Hisloiy Note: Authority' G.S. 143-155.26(4): 
Eff.Jamian- 1. 1992: 
Amended Eft. April 1 , 1999. 



shall be assigned for each occurrence of violations of these 
requirements: supervision of children (6 points), staff/child 
ratio (6 points), staff qualifications and training (2-5 points), 
health and safety practices (3-6 points), discipline (6 points), 
developmentally appropriate activities (2-4) points), adequate 
space (6 points), nutrition and feeding practices (1-3) points, 
program records (1-3 points), sanitation inspections (6 points), 
nutrition and feeding practices (1-3 points), program records 
(1-3 points), sanitation inspections (6 points), and 
transportation (1-3 points), if applicable. The point value of 
each demerit shall be based on the potential detriment to the 
health and safety of children. A compliance history percentage 
shall be calculated each year by subtracting the total number of 
demerits from the total demerits possible and converting to a 
percentage. The yearly compliance history percentage shall be 
averaged over three years for the compliance history 
percentage referenced in this Rule. A copy of the Division 
compliance history score sheet used to calculate the 
compliance history percentage is available for review at the 
address given in Rule .0102 of this Section. 

(d) A one-star rated license shall be issued to a child care 
center that complies with the requirements described in this 
Rule. 

(e) An "A" or "AA" license remains valid until action is 
taken to change to a license with a star rating. 

(0 Nothing in this Section is to preclude or interfere with 
issuance of an administrative action as allowed by G.S. 110 
and this Subchapter. 

HistoiyNote: Authority G.S. 110-90: 110-91: 143B-168.3: 
Eft: April 1. 1999. 

SECTION .1600 - AA REQUIREMENTS 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE 
STANDARDS 

SECTION .0300 - PROCEDURES FOR 
OBTAINING A LICENSE 

.0305 REQUIREMENTS FOR A ONE-STAR RATED 
LICENSE FOR A CHILD CARE CENTER 

(a) Prior to the issuance of an initial one-star rating, a center 
shall comply with all minimum requirements in G.S. 110-91 
and this subchapter at the time the program is assessed. 

(b) To maintain a one-star rated license, a program shall 
have a compliance history of 60% or higher as assessed by the 
Division. 

(c) The Division shall assess the compliance history of a 
center by evaluating the violations of requirements that have 
occurred over the previous three years or during the length of 
time the center began operating, whichever is less. Demerits 



.1601 ADMINISTRATIVE POLICIES REQUIRED 

AA centers and other centers seeking a two through five star 
rated license through the voluntary enhanced program 
standards shall have administrative policies and practices 
which provide for responsible selection and training of staff, 
on-going communication with and opportunities for 
participation by parents, sound operational and fiscal 
management, and objective evaluation of the program, 
management and staff in accordance with the rules of this 
Section. 

HistoiyNote: Authority G.S. 110-88(7): 143B-168.3: 

Eff.Januaiy 1. 1986: 

Amended Eff. Ami L 1999: November 1. 1989: July I. 1988. 

SECTION .2800 - VOLUNTARY RATED LICENSES 

.2805 COMPLIANCE HISTORY STANDARDS FOR 
A RATED LICENSE FOR CHILD CARE 
CENTERS 

(a) To achieve hvo points for compliance history standards 
for a star rating, a center shall have a compliance history rating 
of 65% or higher as assessed by the Division. 

(b) To achieve three points for compliance history standards 



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for a star rating, a center shall have a compliance history rating 
of 70% or higher as assessed by the Division. 

(c) To achieve four points for compliance history standards 
for a star rating, a center shall have a compliance history rating 
of 75% or higher as assessed by the Division. 

(d) To achieve five points for compliance history standards 
for a star rating, a center shall have a compliance history rating 
of 80% or higher as assessed by the Division. 

(e) The Division shall assess the compliance histor)' by 
evaluating the violations of requirements that have occurred 
over the previous three years or during the length of time the 
center has been operating, whichever is less. Demerits shall be 
assigned for each occurrence of violations of these 
requirements: supervision of children (6 points), staff/child 
ratio (6 points), staff qualifications and training (2-5 points), 
health and safety practices (3-6 points), discipline (6 points), 
developmentally appropriate activities (2-4 points), adequate 
space (6 points), nutrition and feeding practices (1-3 points), 
program records (1-3 points), sanitation inspections (6 points), 
and transportation (1-3 points), if applicable. The point value 
of each demerit shall be based on the potential detriment to the 
health and safety of children. A compliance history percentage 
shall be calculated each year by subtracting the total number of 
demerits from the total demerits possible and converting to a 
percentage. The yearly compliance history percentage shall be 
averaged over three years for the compliance history 
percentages referenced in this Rule. A copy of the Division 
compliance history score sheet used to calculate the 
compliance history percentage is available for review at the 
address given in Rule .0102 of this Subsection. 

History- Note: Authority G.S. 110-88(7): 110-90(4): 143B- 

168.3: 

££ .4ml L !999. 

.2806 PROGRAM STANDARDS FOR A RATED 
LICENSE FOR FAMILY CHILD CARE 
HOMES 

(a) To achieve two points for program standards for a star 
rating, the operator shall have written operational policies and 
procedures that include information about meal and snack 
practices, daily activities, parent involvement, health and 
safety practices, infection control/ill child exclusion/inclusion, 
and business practice. 

(b) To achieve three points for program standards for a star 
rating, the operator shall: 

(1) Have written operational policies and procedures 
that include information about meal and snack 
practices, daily activities, parent involvement, health 
and safety practices, infection control/ill child 
exclusion/inclusion, and business practice; and 

(2) Have an average score of 4.0 or higher on the 
Family Day Care Rating Scale or be accredited by a 
national organization approved by the Division. 
Organizations shall be approved if the Division 
determines that the accreditation standards are 
substantially equivalent to those of the National 
Association for Familv Child Care. 



(c) To achieve four points for program standards for a star 
rating, the operator shall: 

( 1 ) Have written operational policies and procedures 
that include information about meal and snack 
practices, daily activities, parent involvement, health 
and safety practices, infection control/ill child 
exclusion/inclusion, and business practice; and 

(2) Have an average score of 4.5 or higher on the 
Family Day Care Rating Scale or be accredited by a 
national organization approved by the Division. 
Organizations shall be approved if the Division 
determines that the accreditation standards are 
substantially equivalent to those of the National 
Association for Family Child Care; and 

(3) Be a member of a national, state, or local 
professional organization. 

(d) To achieve five points for program standards for a star 
rating, the operator shall: 

(1) Have written operational policies and procedures 
that include information about meal and snack 
practices, daily activities, parent involvement, health 
and safety practices, infection control/ill child 
exclusion/inclusion, and business practice; and 

(2) Have an average score of 5.0 or higher on the 
Family Day Care Rating Scale or be accredited by a 
national organization approved by the Division. 
Organizations shall be approved if the Division 
determines that the accreditation standards are 
substantially equivalent to those of the National 
Association for Family Child Care; and 

(3) Be a member of a national, state, or local 
professional organization; and 

(4) Of the five preschoolers allowed to be enrolled, no 
more than three children shall be under one year of 
age. 

HistoiyNote: Authority G.S. 110-88(7): 110-90(4): I43B- 

168.3: 

Eff. .April 1. 1999. 

.2810 HOW AN OPERATOR MAY REQUEST OR 
APPEAL A CHANGE IN RATING 

(a) An operator may request a change in the star rating by 
following the procedures in Rule .2802 of this Section. 

(b) The Division may wait to perform an assessment of the 
facility requesting an increased rating until it has been at least 
six months since the last rating change. 

(c) After an initial three- through five-star rating is issued, 
the Division shall provide for one evaluation of program 
standards using the environment rating scales referenced in 
Rule .2802(e) of this Section during each three year period 
thereafter at no cost to the operator. An operator may have 
extra rating scale assessments as referenced in Rule .2802(e) 
of this Section performed at his or her own expense in addition 
to the free one performed by the Division. The additional 
rating scale assessments shall be completed by individuals 
approved by the Division to perform them. Approval shall be 
based upon the individual's successful completion of training 



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APPROVED RULES 



designated or authorized by the authors of the environment (2) 

rating scales. 

(d) An operator may appeal the reduction of a star rating as 
provided in G.S. 150B-23. 

Hisloi-v Note: Authority G.S. 110-88(7); 110-90(4): N3B- 

168.3: 

Eff. April I 1999. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14C - GENERAL RULES 

SECTION .1100 - STATE AND FEDERAL 
FUNDS ADMINISTERED 

.1151 CAROLINA ALTERNATIVES 

(a) The Division may contract with area programs to 
implement a managed care program for mental health and 
substance abuse services for children pursuant to a waiver 
granted by the Secretary of the United States Department of 
Health and Human Services in accordance with Title XIX of 
the Social Security Act. known as the Carolina Alternatives 
program. 

(b) Funding shall be made available through monthly 
capitation payments received from the Division of Medical 
Assistance. 

(c) Funds shall be awarded and settled based on the 
provisions in the contract between the Division and the area 
program. 

(d) Enrollees shall have the right to appeal adverse (3) 
decisions by a contracting area program, which are defined as: 

(1) denial of a request for first-time service or a service 
other than the current service; 

(2) reduction of a current service; 

(3) suspension of a current service; or 

(4) termination of a current service. 

(e) The Division shall comply, and shall insure that 
contracting area programs comply, with the following appeals 
procedures: 

(1) Notification letter: (4) 

(A) The area program shall send, via regular mail 
or pass by hand, a notification letter at the 
time of service authorization or at another 
time not later than 10 working days before the 
date of the action (reduction, suspension or 
termination). 

(B) The area program shall mail the notification 
letter the same day as the date of the letter in 
order to provide the recipient with the legal 
time period in which to appeal. 

(C) When hand delivered, documentation that the 
individual was given notice shall be 
represented by the date in the notification 
letter. 

(D) A denial of requested services requires a 
notification, but is an e.xception to the 10-day 
advanced notification requirement. 



The notification letter shall contain the following 
information: 

(A) specific information (the identification of the 
area program and type of service under 
review); 

(B) reasons for the decision; 

(C) Medicaid regulations that support the 
decision; 

(D) the right to a State informal and formal 
hearing on the decision; 

(E) the right to a hearing when State or Federal 
law requires a change in service; 

(F) circumstances in which an expedited appeal 
may be requested; 

(G) steps required to start an appeal; 

(H) circumstances in which Medicaid is continued 
until a hearing decision. If an individual 
appeals to the State DMH/DD/SAS or to the 
Office of Administrative Hearings (OAH) 
before the effective date of the proposed 
service reduction, termination, or suspension, 
noted in the letter, authorization for payment 
of the individual's current services will 
continue until a decision is issued; and 

(I) that if an individual abandons or loses an 
appeal, the State has the legal right to recover 
the cost of the disputed treatment, and that 
such costs are accumulated from the 
beginning of the date of the service reduction, 
termination or suspension. 

The notification letter also shall contain treatment 

continuation information as follows: 

(A) the area program may offer other treatment 
services when it denies a person's request for 
a specific treatment. 

(B) the individual may receive the treatment 
specifically requested b> paying for it. 

(C) when and if the individual's medical condition 
changes, the area program will re-evaluate the 
request for a specific treatment. 

Exceptions to 10-day notification requirement. 
Notice shall be given no later than the date of the 
service reduction, termination or suspension where: 

(A) recipient's treating physician changes the 
service (e.g., discharge from a short term or 
crisis hospitalization); 

(B) agency has factual information confirming the 
death of the enrollee; 

(C) agency receives a written statement signed by 
an enrollee that services are no longer 
desired; or gives information that requires 
termination or reduction of services and 
understands that this must be the result of 
supplying that information; 

(D) enrollee has been admitted to a service that is 
not included in the approved service network; 
and 

(E) location of the enrollee is unknown as 



1402 



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March 1, 1999 



13:17 



APPROVED RULES 



certified by the post office, 
(f) Requesting a State Informal Hearing: 

(1) Medicaid recipients have a right to an informal 
hearing by an impartial hearing officer at the 
Division of Mental Health. Developmental 
Disabilities and Substance Abuse Services 
(DMH/DD/SAS). 

(2) This right shall be secured by returning the appeal 
form < included with the notification letter) to the 
State DMH/DD/SAS. 

(3) The form may be sent by mail, facsimile, or hand- 
delivered. 

(4) Upon receipt of an informal appeal request, the 
DMH/DD/SAS shall contact the enrollee and 
schedule a hearing before a hearing officer within 
30 days from receipt of the written request. 

(5) The DMH/DD/SAS shall inform the enrollee in 
writing of the hearing date, the hearing procedures, 
and of their legal rights during the hearing. 

(6) The DMH/DD/SAS promptly shall inform the area 
program of the appeal. With the enrollee's 
permission, the area program shall contact the 
enrollee within three working days of notification 
from DMH/DD/SAS to begin its impartial dispute 
resolution process: (8) 

(A) Each area program shall have an informal 
dispute resolution process that is approved in 
writing by DMH/DD/SAS. Each area 
program shall submit its local review process 
and the Division shall review based on 
whether the recipient has an impartial review 
process by persons not involved with the 
original decision; and 

(B) The process shall include both impartial 
dispute resolution and impartial 
clinical/medical review. 

(7) Informal hearing procedure: 

(A) The enrollee has the right to an in-person 
hearing. Before the hearing, the enrollee has 
the right to review the case file and all records 
that will be used at the hearing. 

(B) The enrollee shall not be denied access to 
review these documents. 

(C) All written material that the enrollee or his 
representative want presented at the hearing 
must be received by the Division hearing 
office at least five days before the scheduled 
hearing. 

(D) If the enrollee or his representative fails to 
appear at the scheduled hearing, without good 
cause, the hearing still shall be held. "Good 
cause" means circumstances beyond the 
control of the enrollee or his representative. 

(E) If at any time during the process the enrollee's 
medical condition worsens and the enrollee is 
re-evaluated for authorization for the current 

or higher service, the informal appeal shall be (9) 

concluded in favor of the enrollee. 



(F) The hearing officer shall give appropriate 
consideration to all matters and documents 
presented either by the enrollee or by the area 
program. Witnesses shall not be required to 
take an oath before making a statement. 

(G) Neither the North Carolina Rules of 
Evidence, the Federal Rules of Evidence, the 
North Carolina Rules of Civil Procedure, nor 
the Federal Rules of Civil Procedure shall 
govern the hearing procedures. 

(H) The hearing officer shall insure that the 
hearing is conducted in a fair, impartial, and 
non-adversarial manner 

(I) The hearing officer shall issue a written 
decision of his findings and conclusions, and 
shall send a copy to the enrollee and to the 
area program. The written decision shall 
notify the enrollee of the right to appeal an 
adverse decision to the Office of 
Administrative Hearings (OAH) and the time 
period within which such appeal must be 
filed. The written decision shall include a 
Petition for Contested Case Hearing 
appropriate for filing at OAH. 

State Formal Hearing: 

(A) The enrollee has the right to appeal an 
adverse decision by an area program directly 
to the OAH for a formal, evidentiary hearing. 

(B) The enrollee also ma\ appeal a 
DMH/DD/SAS hearing officer's adverse 
decision to OAH. 

(C) Either appeal must be filed in accordance 
withG.S. 150B. 

(D) If an enrollee appeals an area program 
adverse decision directly to OAH before the 
effective date of the proposed reduction, 
termination, or suspension, authorization for 
the current service shall continue until a 
Recommended Decision is issued by OAH. 

(E) If an enrollee appeals an area program 
adverse decision after the effective date of the 
proposed reduction. termination, or 
suspension, the area program is not required 
to continue authorization for the current 
service. 

(F) If an enrollee appeals the DMH/DD/SAS 
hearing officer's decision to OAH. the area 
program is required to continue or reinstate 
authorization for the current service until a 
final decision is issued by the Department. 

(G) If an enrollee appeals an area program 
adverse decision after the effective date of the 
proposed reduction. termination, or 
suspension, the area program is not required 
to continue authorization for the current 
service. 

Recovery Procedures: If an enrollee abandons an 
appeal, or if after an appeal through OAH. the 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1403 



APPROVED RULES 



DMH/DD/SAS Final Agency Decision upholds thie 
area program's adverse decision, the State may 
commence to recover the financial costs of any 
unauthorized services furnished to the enrollee as 
the result of taking the appeal. Financial costs 
accumulate from the area program's proposed date 
of service reduction, termination or suspension. 
(10) Expedited Appeals: 

(A) Emergency appeals may be initiated by oral or 
written communication to the area program or 
to the DMH/DD/SAS. To start an emergency 
appeal the enrollee or his legally responsible 
person must attest that services are urgently 
needed and the failure to provide them 
promptly or to continue them might 
reasonably cause deterioration, or impair 
improvement, in the enrollee's medical 
condition. 

(B) The area program shall conduct an expedited 
review within 24 hours of receipt of the 
request, and if its review upholds the adverse 
decision, the area program shall directly 
forward its decision and a copy of all relevant 
medical records to the DMH/DD/SAS. 

(C) The DMH/DD/SAS shall issue its decision 
within two working days of the enrollee's 
request for expedited review. 

(D) The area program is required to continue 
authorization for the current service through 
an expedited appeal until the appeal is 
abandoned or the Department issues a final 
decision. 

Histon' Note: Aiiihohn' G.S. I22C-112: 122C-143. 1: 122C- 

143. 2: 122C-147: I22C-147.1: 122C-147.2: 42 C.F.R. 431: 

Social Security Act. Waiver under Sections 1915(b(l)) and 

(h)(4): 

Etf. February 1 . 1996: 

Amended Eff. .-ipril I. 1999. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

SUBCHAPTER 20C - PROGRAM RULES 

SECTION .0200 - ELIGIBILITY 

.0206 FINANCIAL NEEDS TEST 

(a) A client's financial need shall be determined by 
application of the General Assembly's financial eligibility 
scale for non-medicaid medical programs which sets the limit 
of net annual income for families of various sizes and by 
consideration of other available assets that could be used to 
pay for the cost of rehabilitation services. In applying the 
General Assembly's financial eligibility scale, the Division 
shall follow the provisions of this Rule to determine net 
monthly income and family size. The General Assembly's 
eligibility financial scale is usually found in the current 
appropriations bill as follows: S.L. 1998. c. 212. s. 12.33. 



(b) The time period to be used as the basis for computing 
net monthly family income is the month prior to the planning 
of any service which is based on the individual's financial 
eligibility. Net monthly family income shall be recomputed at 
any time there is a change in the family's income. 

(c) A client's family shall include the client and the 
following persons living in the same household as the client if 
the client is 1 8 years of age or older and is not being claimed 
as a dependent by the parents for tax purposes or if the client is 
less than 18 years of age and is married: 



(1) 
(2) 
(3) 



(4) 



the client's spouse; 

the client's children under 18 years of age; 

other individuals related to the client by blood. 

marriage, or adoption if the other individuals have 

no income; and 

the client's children of any age who are temporarily 

living away from the household while attending 

school if they are being claimed as dependents by 

the client for tax purposes, 
(d) A client's family shall include the client and the 
following persons living in the same household as the client if 
the client is less than 18 years of age and is not married or if 
the client is 18 years of age or older and is being claimed as a 
dependent by the parents for tax purposes: 



(1) 
(2) 



(3) 



(4) 



the client's parents, not including step-parents; 
siblings or half-siblings of the client, but not step- 
siblings, if the siblings are unmarried and less than 
18 years of age; 

siblings or half-siblings of the client, but not step- 
siblings, if the siblings are 18 \ears of age or older 
and have no income; and 

other individuals related to the client by blood, 
marriage, or adoption if the other individuals have 
no income. 

(e) If a client is 18 years of age or older and is temporarily 
living away from the permanent home while attending school 
and is being claimed as a dependent b> the parents for tax 
purposes, the client's family shall be detemiined according to 
Paragraph (d) of this Rule. 

(f) In Paragraphs (d)(2) and (3) of this Rule, siblings who 
are temporarily living away from the household while 
attending school may be considered as living in the same 
household if they are being claimed as dependents by their 
parents for tax purposes and the parents are in the same 
household as the client. 

(g) Net monthly family income shall be computed by 
subtracting the deductions allowed in Paragraph (i) of this 
Rule from the gross monthly family income as computed 
according to Paragraph (h) of this Rule. 

(h) Gross Monthly FamiK Income. 
(1) Gross monthly family income shall mean the 
combined cash income received b\ the client's 
family from the following sources: 

(A) wages and salaries; 

(B) earnings from self-employment; 

(C) earnings from stocks, bonds, savings 
accounts, rentals, and all other investments; 

(D) Social Security benefits and Supplemental 



1404 



NORTH CAROLINA REGISTER 



March I, 1999 



13:17 



APPROVED RULES 



Security Income benefits; 

(E) public assistance benefits; 

(F) retirement and pension payments; 

(G) Veterans Administration benefits; and 
(H) all other sources of cash income. 

(2) If the income received from any of the sources listed 
in Paragraph (h)( 1 ) of this Rule is not received on a 
monthly basis, the monthly pro rata share of the 
most recent receipt of the income shall be included 
in the computation. 

(3) Gross family income shall not include: 

(A) income that children may earn from 
babysitting, lawn mowing, or other 
miscellaneous tasks; 

(B) gifts; 

(C) inheritances; or 

(D) life insurance proceeds. 

(i) Any of the following expenses which are paid by a 
member of the client's family shall be allowed as deductions in 
determining net monthly income; 

(1) state, federal, and Social Security taxes and any 
mandatory deductions for retirement contributions; 

(2) medical and dental payments not covered by a third- 
party payor; 

(3) health insurance premiums; 

(4) disability' related expenses, not covered by a third- 
part} payor, paid for the client or a member of the 
client's family except for expenses for those 
participants or clients who require personal 
assistance services in order to achieve independent 
living or an employment outcome and for whom the 
Division is contributing or is considering 
contributing to the cost of the personal assistance 
services; 

(5) child care payments up to one hundred and seventv- 
five dollars ($175.00) per child per month for any 
child in the family unit who is 14 years of age or 
younger and the parents or other responsible adults 
are not able to care for the child; 

(6) post-secondary training expenses for family 
members not to exceed the rate specified in Rule 
.0205 (b)(4) and (5) of this Section; and 

(7) legally mandated payments such as alimony, child 
support or Social Security paybacks. 

(]) In addition to net monthly family income, other assets 
that are available to the client's family shall be considered in 
determining a client's financial need. Available assets shall 
mean cash or property which could be used to pay for the cost 
of rehabilitation services and shall include: 

( 1 ) cash in checking or savings accounts which exceeds 
an amount three times the net monthly income 
allowed for the family size; and 

(2) real property' considering the following provisions: 

(A) Real property, other than the family homesite, 
shall be considered if the fair market value 
less encumbrances exceeds twenty-five 
thousand dollars ($25,000). 

(B) The equity shall be detennined by subtracting 



the amount owed on mortgages or liens from 
the purchase price or the fair market value, 
whichever is less. 

(C) The family homesite for the purposes of this 
Rule shall be defined as the family's principle 
place of residence and includes: 

(i) the house and lot plus all buildings on 
the lot if the residence is in the city; or 
(ii) the house and the land on which the 
house is located up to a maximum of 
one acre plus all buildings on the acre 
if the residence is in a rural area. 

(D) Real property shall be regarded as an 
available asset to the extent that it can be 
converted to cash, either by sale or by use as 
collateral for a loan, in a timely manner to 
meet the cost of rehabilitation services. 

(k) If the client's family has excess resources in either net 
monthly family income or available assets, the excess 
resources shall be applied to the cost of the client's 
rehabilitation. When the Division is contributing or is 
considering contributing to the cost of personal assistance 
services for an individual who has been detennined financially 
eligible according to this Rule, the individual's financial 
contribution toward the cost of the personal assistance services 
shall be one-half the excess net monthly family income. The 
counselor shall detemiine the amounts to be paid and the 
method of payment. The unit manager shall approve the 
payment plan. 

(I) If there are extenuating circumstances, that prohibit the 
client's application of the excess resources toward the cost of 
rehabilitation, the Division may waive the application of part 
or all of the excess resources toward the rehabilitation. Such 
circumstances may include the inability to sell property, the 
fact that the amount of funds would be so small that it would 
provide little substantial help with the rehabilitation program, 
and the fact that the conversion of the excess resources may 
result in undue delay in proceeding with the rehabilitation 
program. Written approval of the unit manager or facility 
director shall be required for the waiver. Documentation of 
the particular circumstances shall be provided by the client and 
shall be maintained in the client's record. 

History Note: Aitthority G.S. 143-545.1: 143-546.1: 34 

C.F.R. 361.47: 

Eff. Febniaiy 1 . 19^6: 

.Amended Eff. April L !'^99: March I. 1990. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 261V1 - MANAGED CARE 
AND PREPAID PLANS 

SECTION .0200 - PREPAID PLANS 

.0201 PROGRAM DEFINITION 

The Division of Medical Assistance (DMA) may contract 
with Federally qualified Health Maintenance Organizations 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1405 



APPROVED RULES 



(HMOs) and State licensed and certified HMOs to provide and 
coordinate medical services for Medicaid eligibles. Prior to 
DMA awarding a contract to an HMO. the HMO must submit 
an application in which it demonstrates its abilit)- to meet all 
contract specifications. 



History Note: Authority G.S. 108A- 
Eff. Augusts. 1992: 
Amended Eff. April 1 . 1999. 



15tb): 



.0202 ENROLLMENT 

(a) Enrollment is voluntary in all service areas with the 
exception of Mecklenburg County. In Mecklenburg County, 
eligibles in the following program aid categories are required 
to join an HMO if they do not have Medicare coverage: 

{ 1 ) Work First Family Assistance (WFFA); 

(2) Family and Children's Medicaid without deductible 
(MAF): 

(3) Medicaid for Infants and Children (MIC); 

(4) Medicaid for Pregnant Women (MPW); 

(5) Medicaid for the Blind and Disabled (MAB, MAD 
and MSB); and 

(6) Adult Care Home Residents (SAD). 

(b) Each contract shall define eligibles and service areas, 
according to the provisions in 42 CFR 434, Subpart C, which 
is hereby incorporated by reference including subsequent 
amendments and editions. This material is available for 
inspection at the Department of Health and Human Services, 
Division of Medical Assistance. 1985 Umstead Drive, Raleigh. 
North Carolina. Copies of the cited regulation may be 
obtained from the Superintendent of Documents. U.S. 
Government Printing Office. Washington. DC 20402 at a cost 
of twenty-one dollars ($21.00). 

History Mote: Authority- G.S. W8A-25(b): 
Eff. August 3. 1992: 
Amended Eff. .April 1 . 1999. 



the screening, diagnosis, counseling, or treatment of 

sexually transmitted diseases, tuberculosis or HIV; 

and 
(4) services for which the HMO has referred the 

member to an out-of-plan provider, 
(c) The HMO shall make payment for in-plan services in 
Paragraph (b), of this Rule, in an amount agreed upon by the 
provider and the HMO. In the absence of such an agreement, 
payment shall be made in the amount of the Medicaid 
allowable fee. 

Histon' Note: A uthorit\' G. S. 1 08 A -25 (b) ; 
Eff. Augusts, 1992: 
Amended Eff. April I. 1999. 

SECTION .0300- MENTAL HEALTH MANAGED 
CARE-CAROLINA ALTERNATIVES 

.0305 ENROLLEE AND SUB-CONTRACTOR 
APPEALS 

(a) Enrollee appeals shalll be submitted and processed in 
accordance with lONCAC 14C.115I. 

(b) Sub-contractors may appeal adverse decisions to the 
local area program, in accordance with G.S. 122C-151.4 and 
10 NCAC 14V .0708. .0710, .0711, and .0712 to the Area 
Authority' Review Panel. 

HistoijNote: Authority G.S. 108.A-25(b): 108A-54: 108.4- 
55: S.L 199S. c. S21. s. 222(g): 42 C.ER. 4S1: 
Eff. June 1. 1995: 
Amended Eff. April 1. 1999. 



TITLE II - DEPARTMENT OF INSURANCE 

CHAPTER 8 - ENGINEERING AND BUILDING 
CODES DIVISION 



.0203 ACCESS TO CARE 

(a) In-plan and out-of-plan services shall be listed in the 
contract between the HMO and DMA. The HMO shall pay 
for all in-plan services when provided in accordance with the 
HMO"s policies and procedures. DMA shall pay for all out- 
of-plan services provided in accordance with Medicaid 
policies and procedures. The Division of Medical Assistance 
has the authority to dens' payment for in-plan services not 
provided nor authorized by the HMO. 

(b) HMO members shall receive all in-plan services from 
their HMO or its subcontractors except: 

(1) emergency medical services as defined in 42 U.S.C. 
1932(b)(2)(B) and (C), which could not be provided 
by the HMO because the time to reach the in-plan 
provider capable of providing such services would 
have meant risk of serious damage or injur) to the 
member's health; 

(2) Medicaid-covered family planning services and 
supplies; 

(3) services provided by a public health department for 



SECTION .0900 



MANUFACTURED HOUSING 
BOARD 



.0912 SET-UP CONTRACTOR EXAMS 

(a) Definitions. The definitions contained in G.S. 143- 
143.9 are incorporated into this Rule by reference. As used in 
this Rule, "qualifier" means an individual taking the 
examination on behalf of an applicant that is not an individual. 

(b) Examination Required. Each applicant for a set-up 
contractor's license shall pass a written examination 
administered by the Board before the Board will issue a 
license to the applicant. Ever\' applicant shall pass the 
examination with a grade of at least 70 percent. An applicant 
who does not pass the examination shall be allowed to retake 
the examination. 

(c) Time and Place of Examinations. The Board shall 
administer examinations in its offices in Raleigh. The Board 
shall announce the time and place for each examination at least 
10 days before the date of the examination. 

(d) Application Process. Each applicant shall complete an 



1406 



NORTH CAROLINA REGISTER 



March 7, 1999 



13:17 



APPROVED RULES 



application on a form provided by the Board. If the applicant 
is not an individual, the applicant shall identify on the 
application any individuals who will take the examination for 
the applicant. In order to take an examination on a particular 
date, an applicant shall file a completed application no later 
than 30 days before the scheduled date of the examination. 

(e) Person Taking Examination. A qualifier shall be 
associated with the applicant, and shall be actively engaged in 
the work of the applicant for a minimum of 20 hours per week, 
or a majority of the hours operated by the applicant, whichever 
is less. Each licensee shall notify the Board in writing within 
10 days after any qualifier no longer meets the preceding 
requirements. If one qualifier fails, and another passes, the 
license shall be granted to that applicant. An individual shall 
not serve as a qualifier for more than one license. The 
applicant may have more than one individual serve as a 
qualifier. 

(f) General Requirements. All applicants scheduled for an 
examination shall bring a form of identification with a current 
picture. No visitors shall be allowed in the testing room. 

(g) Special Arrangements for the Disabled. If an applicant 
has a disabilirv which will require special arrangements to take 
an examination, the applicant shall request in writing that 
appropriate special arrangements be made. The Board shall 
make reasonable accommodations for applicants requesting 
assistance pursuant to this Rule. 

(h) Cheating and Related Misconduct. Applicants shall not 
cheat or attempt to cheat on an examination by any means, 
including both giving and receiving assistance, and shall not 
communicate in any manner for any purpose with any person 
other than staff members for the Board during an examination. 

(i) Notification of Results. The examination results shall be 
mailed to the applicant at the address on the application form 
within 30 days after the examination. Passing applicants shall 
receive only a grade of "pass." 

(j) Review of Examinations. Upon the applicant's written 
request, made within 30 days after the written notification of 
the examination results, an applicant who did not pass the 
examination shall be allowed to review his examination. The 
review shall be at the Board's offices, at a time schedule by the 
Board's staff An applicant shall review his examination in 
the presence of a staff member of the Board and shall not be 
accompanied by any other individual at a review session. No 
other individual shall review an examination on behalf of the 
applicant. An applicant shall not be permitted to copy a 
question or answer contained in the examination report or alter 
an examination paper in any way. An applicant who has 
passed the examination shall not be permitted to review his 
examination. If the applicant is not an individual, the review of 
the examination shall be made by the applicant's qualifier. 

Hisloiy Note: Amhorin- G.S. 143-143. I0lh)(4l: 143- 

1 43.11 (h): 

Eff. .April L 1999. 

CHAPTER 12 - LIFE AND HEALTH DIVISION 



SECTION .0800 - MEDICARE SUPPLEMENT 
INSURANCE 

.0841 CREDITABLE COVERAGE 

(a) As used in this Rule; 

(1) "Continuous period of creditable coverage" means 
the period during which an individual was covered 
by creditable coverage, if during the period of the 
coverage the individual had no breaks in coverage 
greater than 63 days. 

(2) "Creditable coverage" has the same meaning as in 
G.S. 58-68-30(c)(l). 

(b) If an applicant qualifies under 11 NCAC 12 .0837(a) 
and submits an application during the time period referenced 
in II NCAC 12 .0837(a) and, as of the date of application, has 
had a continuous period of creditable coverage of at least six 
months, the issuer shall not exclude benefits based on a 
preexisting condition. 

(c) If the applicant qualifies under II NCAC 12 .0837(a) 
and submits an application during the time period referenced 
in II NCAC 12 .0837(a) and, as of the date of application, has 
had a continuous period of creditable coverage that is less than 
six months, the issuer shall reduce the period of any 
preexisting condition exclusion by the aggregate of the period 
of creditable coverage applicable to the applicant as of the 
enrollment date. The manner of the reduction under this 
Paragraph shall be as prescribed by the Secretarv of the United 
States Department of Health and Human Services. 

(d) 1 1 NCAC 12 .0837(b) does not apply to this Rule. 

History Note: .Authority G.S. 58-2-40: 58-54-10: 58-54-15: 

58-54-25: 58-54-50: 

Temporan,- Adoption Eff. August I. 1998: 

Eff. .April 1. 1999. 

.0842 GUARANTEED ISSUE FOR ELIGIBLE 
PERSONS 

(a) As used in this Rule: 

(1) "Bankruptcy" means when a Medicare+Choice 
organization that is not an issuer has filed, or has 
had filed against it, a petition for declaration of 
bankruptcy and has ceased doing business in the 
state. 

(2) "Employee welfare benefit plan" means a plan, fund 
or program of employee benefits as defined in 29 
U.S.C. §1002 (Employee Retirement Income 
Security Act). 

(3) "Insolvency" means when an issuer, licensed to 
transact the business of insurance in this State, has 
had a final order of liquidation entered against it 
with a finding of insolvenc\ by a court of competent 
jurisdiction in the issuer's state of domicile. 

(4) "Medicare+Choice plan" means a plan of coverage 
for health benefits under Medicare Part C as defined 
in Section 1859, Title IV, Subtitle A, Chapter I of 
RL. 105-33, and includes: 

(A) Coordinated care plans which provide health 
care services, includinu but not limited to 



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1407 



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health maintenance organization plans (with 
or without a point-of-service option), plans 
offered by provider-sponsored organizations, 
and preferred provider organization plans; 

(B) Medicare medical savings account plans 
coupled with a contribution into a 
Medicare+Choice medical savings account; 
and 

(C) Medicare+Choice private fee-for-service 
plans. 

(b) Eligible persons are those individuals described in 
Paragraph (c) of this Rule who apply to enroll under the policy 
not later than 63 days after the date of the termination of 
enrollment described in Paragraph (c) of this Rule, and who 
submit evidence of the date of termination or disenrollment 
with the application for a Medicare supplement policy. With 
respect to eligible persons, an issuer shall not deny or 
condition the issuance or effectiveness of a Medicare 
supplement policy described in Paragraph (d) of this Rule that 
is offered and is available for issuance to new enrollees by the 
issuer, shall not discriminate in the pricing of such a Medicare 
supplement policy because of health status, claims experience, 
receipt of health care, or medical condition, and shall not 
impose an exclusion of benefits based on a preexisting 
condition under such a Medicare supplement policy. 

(c) An eligible person is an individual described in any of 
the following Subparagraphs: 

( 1 ) The individual is enrolled under an employee 
welfare benefit plan that provides health benefits 
that supplement the benefits under Medicare; and 
the plan terminates, or the plan ceases to provide all 
such supplemental health benefits to the individual; 
or the individual is enrolled under an employee 
welfare benefit plan that is primary to Medicare and 
the plan terminates or the plan ceases to provide all 
health benefits to the individual because the 
individual leaves the plan; 

(2) The individual is enrolled with a Medicare+Choice 
organization under a Medicare+Choice plan under 
part C of Medicare, and any of the following 
circumstances apply: 

(A) The organization's or plan's certification 
[under this part] has been terminated or the 
organization has terminated or otherwise 
discontinued providing the plan in the area in 
which the individual resides; 

(B) The individual is no longer eligible to elect 
the plan because of a change in the 
individual's place of residence or other 
change in circumstances specified by the 
Secretary of the United States Department of 
Health and Human Services, but not including 
termination of the individual's enrollment on 
the basis described in Section 1851(g)(3)(B) 
of the federal Social Security Act (where the 
individual has not paid premiums on a timely 
basis or has engaged in disruptive behavior as 
specified in standards under Section 1856). or 



(3) 



the plan is terminated for all individuals 
within a residence area; 

(C) The individual demonstrates, in accordance 
with guidelines established by the Secretary 
of the United States Department of Health 
and Human Services, that: 

(i) The organization offering the plan 
substantially violated a material 
provision of the organization's contract 
under this part in relation to the 
individual, including the failure to 
provide an enrollee on a timely basis 
medically necessary care for which 
benefits are available under the plan or 
the failure to provide such covered care 
in accordance with applicable quality 
standards; or 
(ii) The organization, or agent or other 
entity acting on the organization's 
behalf, materially misrepresented the 
plan's provisions in marketing the plan 
to the individual; or 

(D) The individual meets such other exceptional 
conditions as the Secretary of the United 
States Department of Health and Human 
Services may provide. 

The individual is enrolled with: 



(A) An eligible organization under a contract 
under Section 1876 (Medicare risk or cost); 
or 

(B) A similar organization operating under 
demonstration project authority, effective for 
periods before April 1, 1999; or 

(C) An organization under an agreement under 
Section 1833(a)(1)(A) (health care 
prepayment plan); or 

(D) An organization under a Medicare Select 
policy; and 

(E) The enrollment ceases under the same 
circumstances that would permit 
discontinuance of an individual's election of 
coverage under Subparagraph (2) of this 
Paragraph. 

(4) The individual is enrolled under a Medicare 
supplement policy and the enrollment ceases 
because: 

(A) Of the insolvency of the issuer or bankruptcy 
of the nonissuer organization or of other 
involuntary termination of coverage or 
enrollment under the policy; 

(B) The issuer of the policy substantially violated 
a material provision of the policy; or 

(C) The issuer, or an agent or other entit\ acting 
on the issuer's behalf. materially 
misrepresented the policy's provisions in 
marketing the policy to the individual; 

(5) The individual was enrolled under a Medicare 
supplement policy and temiinates enrollment and 



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subsequently enrolls, for the first time, with any 
Medicare+Choice organization under a 
Medicare+Choice plan under part C of Medicare, 
any eligible organization under a contract under 
Section 1876 (Medicare risk or cost), any similar 
organization operating under demonstration project 
authority, an organization under an agreement under 
Section 1833(a)(1)(A) (health care prepayment 
plan), or a Medicare Select policy; and the 
subsequent enrollment is terminated by the enrollee 
during any period within the first 12 months after 
the subsequent enrollment (during which the 
enrollee is permitted to terminate the subsequent 
enrollment under Section 1851(e) of the federal 
Social Security Act); 

(6) The individual, upon first becoming enrolled in 
Medicare part A or part B for benefits at age 65 or 
older, enrolls in a Medicare+Choice plan under part 
C of Medicare, and disenrolls from the plan by not 
later than 12 months after the effective date of 
enrollment; or 

(7) The individual is enrolled in a Medicare risk plan 
under part C of Medicare and the plan is later 
converted to a Medicare+Choice plan, and first 
disenrolls from the converted plan by not later than 
12 months after the effective date of the conversion. 

(d) The Medicare supplement policy to which eligible 
persons are entitled under: 

( 1 ) Subparagraphs (c)( 1 ), (2), (3) and (4) of this Rule is 
a Medicare supplement policy which has a benefit 
package classified as Plan A, B, C, or F offered by 
any issuer. 

(2) Subparagraph (c)(5) is the same Medicare 
supplement policy in which the individual was most 
recently previously enrolled, if available from the 
same issuer, or. if not so available, a policy 
described in Subparagraph ( 1 ) of this Paragraph. 

(3) Subparagraph (c)(6) shall include any Medicare 
supplement policy offered by any issuer. 

(e) At the time of an event described in Paragraph (c) of this 
Rule because of which an individual loses coverage or benefits 
due to the termination of a contract or agreement, policy, or 
plan, the organization that terminates the contract or 
agreement, the issuer terminating the policy, or the 
administrator of the plan being terminated, respectively, shall 
notify the individual of his or her rights under this Section, and 
of the obligations of issuers of Medicare supplement policies 
under Paragraph (b) of this Rule. Such notice shall be 
communicated contemporaneously with the notification of 
termination. At the time of an event described in Paragraph (c) 
of this Rule because of which an individual ceases enrollment 
under a contract or agreement, policy, or plan, the organization 
that offers the contract or agreement, regardless of the basis 
for the cessation of enrollment, the issuer offering the policy, 
or the administrator of the plan, respectively, shall notify the 
individual of his or her rights under this Section, and of the 
obligations of issuers of Medicare supplement policies under 
Paragraph (b) of this Rule. Such notice shall be communicated 



within 10 working days of the issuer receiving notification of 
disenrollment. 

History Note: Authority G.S. 58-2-40: 58-54-10: 58-54-15: 

58-54-25: 58-54-50: 

Temporary Adoption Ejf. August I. 1998: 

Eff. April ' 1, 1999. 



TITLE 12 -DEPARTMENT OF JUSTICE 

CHAPTER 9 - CRIMINAL JUSTICE EDUCATION 
AND TRAINING STANDARDS 

SUBCHAPTER 98 - STANDARDS FOR CRIMINAL 

JUSTICE EMPLOYMENT: EDUCATION: 

AND TRAINING 

SECTION .0300 - MINIMUM STANDARDS FOR 
CRIMINAL JUSTICE INSTRUCTORS 

.0301 CERTIFICATION OF INSTRUCTORS 

(a) Any person participating in a commission-accredited 
criminal justice training course or program as an instructor, 
teacher, professor, lecturer, or other participant making 
presentations to the class shall first be certified by the 
Commission as an instructor. 

(b) The Commission shall certify instructors under the 
following categories: General Instructor Certification, 
Specific Instructor Certification or Professional Lecturer 
Certification as outlined in Rules .0302, .0304 and .0306 of 
this Section. Such instructor certification shall be granted on 
the basis of documented qualifications of experience, 
education, and training in accord with the requirements of this 
Section and reflected on the applicant's Request for Instructor 
Certification Form. 

(c) In addition to all other requirements of this Section, 
each instructor certified by the Commission to teach in a 
Commission-accredited course shall remain competent in 
his/her specific or specialty areas. Such competence includes 
remaining current in the instructor's area of expertise, which 
may be demonstrated by attending and successfully completing 
any instructor updates issued by the Commission. 

(d) The Standards Division ma\ notify' an applicant for 
instructor certification or a certified instructor that a deficiency 
appears to exist and attempt, in an advisory capacity, to assist 
the person in correcting the deficiency. 

(e) When any person certified as an instructor by the 
Commission is found to have knowingly and willfully violated 
any provision or requirement of these Rules, the Commission 
may take action to correct the violation and to ensure that the 
violation does not recur, including: 

( 1 ) issuing an oral warning and request for compliance; 

(2) issuing a written warning and request for 
compliance; 

(3) issuing an official written reprimand; 

(4) suspending the individual's certification for a 



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APPROVED RULES 



specified period of time or until acceptable 
corrective action is taken by the individual; 
(5) revoking tiie individual's certification. 
(0 The Commission may deny, suspend, or revoke an 
instructor's certification when the Commission finds that the 
person: 

( 1 ) has failed to meet and maintain any of the 
requirements for qualification; or 

(2) has failed to remain currently knowledgeable in the 
person's areas of expertise; or 

(3) has failed to deliver training in a manner consistent 
with the instructor lesson plans outlined in the 
"Basic Instructor Training Manual" as found in 12 
NCAC 9B .0209; or 

(4) has failed to follow specific guidelines outlined in 
the "Basic Law Enforcement Training Course 
Management Guide" as found in 12 NCAC 98 
.0205; or 

(5) has demonstrated unprofessional personal conduct 
in the delivery of commission-mandated training; or 

(6) has demonstrated instructional incompetence; or 

(7) has knowingly and willfully obtained, or attempted 
to obtain instructor certification by deceit, fraud, or 
misrepresentation; or 

(8) has failed to meet or maintain good moral character 
as required to effectively discharge the duties of a 
criminal justice instructor. 

Histoiy Note: Authority G.S. 17C-6; 

Eff.Januaiy 1, 1981; 

Amended Eff. April 1, 1999: July I. l991:Janua/y 1, 1985. 



TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 12 - WAGE AND HOUR 

SECTION .0300 - WAGES 

.0303 TIPS AND TIP CREDITS 

(a) Tips are not wages. Tips may be counted toward wages 
only to the extent set forth in Paragraphs (e), (f) and (g) of this 
Rule. 

(b) A tip shall not include a service charge which the 
employer requires the customer to pay, no matter what the 
charge is labeled. 

(c) Tips belong to the emplo\ee for whom they were left by 
the customer. Employees and employers may not agree that 
the employee will surrender tips to the employer However, if 
there is a tip pooling arrangement under 95-25. 3(f). the 
employee may be required to surrender tips received for 
distribution in accord with the tip pooling arrangement. 

(d) If a customer pays by credit, charge or debit card and 
includes a tip for an employee: 

( I ) the tips so charged accrue to the employee at the 
time of the charge. The employer shall pay the 
employee the charged tip no later than the payday 
for the pa\ period in which the customer signs the 



charge; and 
(2) employers may retain from the tips an amount up to 
or equal to the pro rata portion of the fee charged by 
the card issuing company which is attributable to the 
tips. When employers make such retentions, they do 
so without violating G.S. 95-25.6 and without 
becoming disqualified from claiming the tip credit 
on the charged tip. 

(e) in order for an employer to claim a tip credit toward the 
minimum wage: 

(1) the employee must be a tipped employee within the 
meaning of the Act; 

(2) the employer shall notify the employee in 
accordance with G.S. 95-25.13 if the employer 
intends to claim the tip credit; and 

(3) the employee must retain all tips, subject to any 
valid tip pooling arrangement as described in 
Paragraph (h) of this Rule. 

(f) The following records shall be kept by the employer for 
each employee for whom a tip credit is claimed: 

(1 ) Complete and accurate records of the amount of tips 
received for each workweek as such tips are 
certified by the employee monthly or for each pay 
period. The employee certification is the employee's 
signature or initials on the employer's records. 
Certification shall occur either monthly or for each 
pay period. The sole exception to this requirement is 
set forth in Paragraph (g) of this Rule. An 
employee's acceptance of wages from the employer 
shall not constitute certification by the employee of 
tips received; 

(2) The amount claimed by the employer as tip credit 
for each employee for each workweek; 

(3) For each employee participating in a tip pool, for 
each workweek, the amount of contributions to the 
tip pool; and 

(4) For each employee participating in a tip pool, for 
each workweek, the amount received from the tip 
pool. 

(g) If the employee refuses to certify or to certify' accurately 
and completely the amount of tips received, a tip credit may be 
claimed if the employer: 

( 1 ) meets the requirements of Paragraphs (e)(3) and (f) 
of this Rule; and 

(2) can demonstrate with written documentation for 
each workweek for which a credit is claimed: 

(A) that the tipped emplo>ee certifies having 
received tips in the amount for which the 
credit is taken, or 

(B) that a similarly situated tipped employee 
received tips in the amount for which the 
credit is taken, or 

(C) by other method which reliably establishes 
that the tipped employee regularly receives 
tips in the amount for which the credit is 
taken. 

(h) "Tip pooling" as used in G.S. 95-25. 3(f) is an 
arrangement in which all or a part of the tips of the 



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contributing employees are combined into a common pool and 
then divided among the participating employees according to a 
pre-determined formula. An employee's share of a tip pool is 
that portion of the total amount in the pool which the employee 
receives. A tip pooling arrangement is valid under G.S. 95- 
25.3(f) when: 

(1) the contributing employees are notified of the 
arrangement before the pay period in which it will 
be used; 

(2) the share of each contributing employee is at least 
85% of the employee's tips before the employee 
contributes to the tip pool; and 

(3) only employees who customarily and regularly 
receive tips receive a share from the pool. 

The requirement of 95-25.6 that the employer pay "tips 
accruing to the employee" shall be satisfied if the employee in 
a tip pooling arrangement receives 85% of the employee's 
actual tips before pooling or the employee's share received 
from the pool, whichever is greater. By complying with 
Subparagraph (h)(2) of this Rule, the employer has also 
satisfied the provision of G.S. 95-25. 3(f) requiring the 
employer to allow the tipped employee to retain all tips. 

History- Note: Authority G.S. 95-25.3: 95-25.6: 95-25.13: 
95-25.15: 95-25.19: 
Eff. November 1. 1980: 
Amended Eff. .April 1. 1999. 

.0305 AUTHORIZATION FOR WITHHOLDING OF 
WAGES 

(a) An employer may withhold or divert a portion of an 
employee's wages without the employee's authorization only 
when the employer is required or empowered to do so by 
North Carolina or federal law. A valid authorization by an 
employee is required in all other circumstances for an 
employer to make a deduction from an employee's wages. Two 
types of authorization are permitted: 

(1) A specific authorization shall be used when the 
amount or rate of the proposed deduction is known 
and agreed to at the time the employee signs the 
authorization. 

(2) A blanket authorization shall be used when the 
amount of the proposed deduction is not known and 
agreed to at the time the employee signs the 
authorization. 

(b) An authorization by an employee, to be valid, shall: 

( 1 ) be written; 

(2) be signed by the employee on or before the payday 
for the pay period for which the deduction is being 
made; 

(3 ) show the date of signing by the employee; 

(4) state the reason for the deduction; and 

(5) if it is a specific authorization, state the specific 
dollar amount or percentage of wages to be deducted 
from each paycheck and the number of paychecks or 
length of time for which the deduction is authorized. 

(c) A specific authorization may be for one or more 
paychecks and shall state the dollar amount or percentage of 



wages which the employee agrees may be deducted from each 
paycheck. Employers shall give employees a reasonable 
opportunity to withdraw specific authorizations if such 
deductions are for their convenience. Deductions for the 
convenience of the employees include, but are not limited to. 
such things as savings plans, credit union installments, savings 
bonds, union or club dues, uniform rental, uniform cleaning, 
parking and charitable contributions. 

(d) An employer shall not make a deduction under a blanket 
authorization until the employee has been given: 

(1) Advance notice of the specific amount of the 
proposed deduction. For purposes of deductions 
involving cash shortages, inventory shortages, or 
loss or damage to an employer's property, advance 
notice shall be at least the seven day period 
prescribed in G.S. 95-25.9. 

(2) A "reasonable opportunity to withdraw" the 
authorization before the deduction is made. A 
reasonable opportunity to withdraw a blanket 
authorization shall be at least three calendar days 
from the date of the employer's notice of the 
specific amount of the deduction to be taken. 

(e) When an authorization is required by the Act, the 
monetary limitations and time requirements specified in G. S. 
95-25.8. 95-25.9 and 95-25.10 of the Wage and Hour Act 
apply and shall not be waived. 

(f) Advances of uages to the employee at the employee's 
request are considered to be prepayment of wages. Advances 
of wages to a third party at the employee's request are also 
considered to be prepayment of wages. A dated receipt, signed 
by the employee, for the advanced wages, shall be sufficient to 
show that the advance was requested and made. No 
withholding authorizations are required by G.S. 95-25.8(2) 
when the employer deducts for the advanced wages. 

(g) In the absence of an executed loan document, the 
principal of a loan from an employer to an employee is 
considered to be an advance of wages. Such loans may include 
credit advanced by the employer to an emplo\'ee at the 
employee's request for purchasing from the employer items 
not primarily for the benefit of the employer. Deductions for 
interest and other related charges require written authorizations 
in accordance with these Rules. Personal loans from a 
supervisor to a subordinate or loans made by third parties to an 
employee with payroll deduction arrangements are not an 
advance of wages. 

(h) An overpayment of wages to an employee as a result of 
a miscalculation of wages or other bona tide error may be 
treated as an advance of wages h\ the employer. If the 
employer underpays wages to an employee as a result of a 
miscalculation of wages or other bona fide error, the employer 
shall pa\ an\ such underpay ment owed as soon as possible 
upon the discovery of the error along with accrued interest at 
the legal rate set forth in G.S. 24-1 from the date the wages 
first became due. 

(i) Authorizations for deductions that are not permitted by 
law are invalid. For example: 

(1) G.S. 97-21 invalidates agreements by an employee 
to pay any portion of a premium paid b\ his or her 



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APPROVED RULES 



employer to a workers' compensation insurance 
carrier; 
(2) 13 NCAC 7F .0101(a)(2) requires the employer to 
provide, at no cost to the employee, all personal 
protective equipment which the employee does not 
wear offthe jobsite for use off the job. 
If an employer withholds or diverts wages for purposes not 
permitted by law. the employer shall be in violation of G.S. 95- 
25.6 or G.S. 95-25.7, or both, even if the employee authorizes 
the withholding in writing pursuant to G.S. 95-25.8(2). 
because that authorization is invalid. 

(^i) An employer may obtain a written authorization pursuant 
to G.S. 95-25. 8(2)(a) and include in the authorization a 
provision for deducting the balance of the unpaid amount from 
the employee's paycheck in the event the employee separates 
before the full amount has been collected. If the employer 
obtains such an authorization, the employer may deduct as 
much of the balance possible from the final paycheck without 
having to give the employee notice of the amount and a 
reasonable opportunity to withdraw his or her authorization as 
required by G.S. 95-25. 8(2)(b), subject to the withholding 
limitations of G.S. 95-25.10. If the employer does not include 
in the specific authorization an express provision to deduct the 
balance upon an employee's separation, then an employer shall 
not deduct from the final paycheck an unpaid balance which is 
greater than the specific amount or percentage authorized 
unless an additional authorization is obtained. 

(k) A wage credit in the form of tips in accordance with 
Rule .0303 of this Section, or the reasonable costs of meals, 
lodging or other facilities in accordance with Rule .0301 of 
this Section, is not a withholding of wages and does not 
require written authorization pursuant to G.S. 95-25.8(2). 

(I) An employer is permitted to establish an escrow or bond 
account funded by an employee's wages to recover amounts 
owed to the employer, as long as the employer obtains a valid 
authorization from the employee pursuant to G.S. 95-25.8(2) 
before diverting wages to such an account. An employer must 
also obtain a valid authorization from the employee before 
making a deduction from the account. Upon discontinuance of 
employment for any reason, remaining funds shall be returned 
to the employee. 

Histon' Note: Legislative Objection Lodged Eff. March 2"!. 

1981:' 

Authority- G.S. 95-25.8: 95-25.9: 95-25.10: 95-25.11: 95- 

25.13: 95-25.19: 

Eff. November 1. 1980: 

Amended Eff. April ]_, 1999: Februaiy 1. 1982. 

.0310 "OTHER AMOUNTS PROMISED" AS 
WAGES 

"Other amounts promised" as that term is used in G.S. 95- 
25.2(16) are those amounts which the employer has promised 
or has a policy or practice of paying and shall include, but are 
not limited to, travel expenses, holidax pay, birthday pa\, jur\ 
dut\ pay. shift premium pay. prizes, moving expenses, 
educational expenses, or telephone expenses. 



History Note: A uthority G. S. 95-25. 2: 95-25. 6; 95-25. 7: 95- 

25.19: 

Eff. April 1, 1999. 

SECTION .0600 - INVESTIGATION AND 
ENFORCEMENT 

.0604 ADMINISTRATIVE REMEDIES 

(a) For purposes of 95-25. 22(g), "exhausting administrative 
remedies" means that the Commissioner shall: 

( 1 ) Investigate the alleged violations of the Act and 
afford the employer the opportunity' to present 
evidence in its defense during such investigation; 
and 

(2) Notify the employer and complainant(s), after 
completion of the investigation, of: 

(A) The violations found and amounts found due; 
and 

(B) The employer's right to be heard further in 
the matter; and 

(3) Hear any additional evidence presented by the 
employer exercising its right to be heard further as 
set forth in Paragraphs (b) and (c) of this Rule; and 

(4) Notify- the employer of any pending action. 

(b) Employers wishing to exercise the right to be heard 
further shall: 

(1) Notify the Commissioner, within 14 days from the 
date the Commissioner notified the employer of the 
findings. The 14 days begins on the date the 
Commissioner mailed notification to the employer 
pursuant to Subparagraph (a)(2) of this Rule. The 
employer may notify the Commissioner either orally 
or in writing. 

(2) Present additional evidence to the Commissioner on 
disputed issues within 14 days from the date the 
employer notified the Commissioner of its intent to 
exercise the right to be heard further. 

(c) The employer shall waive its right to be heard further if 
it: 

( 1 ) fails to notify the Commissioner in accordance with 
Subparagraph (b)( 1 ) of this Rule; or 

(2) fails to submit evidence in accordance with 
Subparagraph (b)(2) of this Rule; or 

(3) agrees to remedy the violations found and to pay in 
full the amounts found due. 

(d) If the employer presents additional evidence in 
accordance with Paragraph (b) of this Rule, the Commissioner 
shall notify the employer and complainant(s) of any 
modifications which are made to the Commissioner's findings. 

(e) For purposes of G.S. 95-25. 22(g) and this Rule, the 
Commissioner shall make all notifications to the last known 
addresses of the employer and complainants. 

History- Note: A uthority- G. S. 95-25. 1 6: 95-25. 1 ".• 95-25. 1 9: 

95-25.22: 

Eff. November 1. 1980: 

Amended Eff. .April 1. 1999. . 



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SECTION .0700 - CIVIL MONEY PENALTIES 

.0702 CIVIL PENALTY ASSESSMENT 

(a) If the Commissioner finds that an employer has violated 
any of the provisions of G.S. 95-25.5. G.S. 95-25. 15(b) or 
these Rules, the Commissioner may assess a civil penalty for 
each violation. 

(b) The maximum amount of a civil penalty shall be based 
on the nature and the gravity of the violation or violations. 
Matters which are indications of the gravity of a violation 
include, but are not limited to: 

(1) the likelihood of injury and the seriousness of the 
potential injuries to which a youth has been 
exposed; 

(2) multiple violations by a business or employer; 

(3) recurring violations; 

(4) employment of any youth in a hazardous or 
detrimental occupation without a waiver from the 
Commissioner; 

(5) violations involving youths under 14 years of age. 

(c) The Commissioner shall assess a penalty of: 

(1) two hundred fifty dollars ($250.00) if a youth 
employment certificate would not have been issued 
because the employment was for a hazardous or 
detrimental occupation. 

(2) one hundred twenty-five dollars ($125.00) if the 
certificate would not have been issued, but the 
employment was non-hazardous or non-detrimental. 

(3) fifty dollars ($50.00) if a certificate would have 
been issued but the employer did not have or 
maintain the certificate. 

(d) Reductions in the penalty amount may be made based 
on the size of a business (number of employees and gross 
volume) and its past record of compliance with the Wage and 
Hour Act. 

History Note: Authority- G.S. 95-25. 1 7: 95-25. 19: 95-25.23: 

95-25.23 A: 

Eff. November I. 1980: 

Amended Eff. April L 1999: Fehntaiy I. 1 982. 

CHAPTER 19 - RETALIATORY EMPLOYMENT 
DISCRIMINATION 



( 1 ) notify ing the WORD Office, as soon as possible, of 
changes in address, name or telephone number; 

(2) providing all information requested by the 
investigator in the time and manner specified by the 
investigator; 

(3) attending meetings or conferences scheduled by the 
investigator; 

(4) meeting reasonable deadlines established by the 
investigator; 

(5) returning required forms; and 

(6) returning telephone calls. 

Failure to cooperate may result in dismissal of the complaint 
pursuant to Rule .0603 of this Chapter. 

History Note: Authority G.S. 95-245: 
Eff. April L 1999. 

.0402 INTERVIEWS 

(a) All witnesses shall be interviewed in private, except as 
provided in Paragraphs (b) and (c) of this Rule. 

(b) Witnesses may be accompanied by their own attorney, 
representative, or interpreter. 

(c) Witnesses whose statements can legally bind a 
respondent may be accompanied by that respondent's attorney. 

History Note: Aiithorit}- G.S. 95-245: 
Eff. .4ml L !999. 

SECTION .0500 - RIGHT-TO-SUE LETTERS 

.0501 RIGHT-TO-SUE LETTERS 

A right-to-sue letter may be requested by the complainant 
after a determination of reasonable cause to believe that the 
allegations of the complaint are true and notice of conciliation 
failure. The request may be granted unless the Commissioner 
intends to file a civil action pursuant to G.S. 95-243. If the 
request for a right-to-sue letter is granted, the case shall be 
closed. 

History Note: Authority G.S. 95-245: 
Eff. April 1. 1999. 

SECTION .0600 - CLOSING OF CASES 



SECTION .0400 - CONDUCT OF INVESTIGATIONS 

.0401 INVESTIGATION 

(a) The Commissioner may, in addition to other actions, 
interview witnesses, examine and obtain copies of documents, 
and visit workplaces in determining whether or not there is 
reasonable cause to believe that the allegations of the 
complaint are true. 

(b) The respondent has 30 days from notification of the 
complaint to respond to the allegations of the complaint. The 
respondent's failure to timely respond shall not prevent the 
investigation from proceeding to a determination. 

(c) The complainant shall cooperate during the course of the 
investigation. Cooperation shall include, but is not limited to: 



.0604 RIGHT-TO-SUE CLOSURE 

Upon the issuance of a right-to-sue letter, the Commissioner 
shall close the case file. 

Hisloiy Note: Authority G.S. 95-245: 
Eff April L 1999. 

SECTION .0700 - SETTLEMENT AND LITIGATION 

.0701 SETTLEMENT 

Except in those cases where the complaint has been 
withdrawn, or a right-to-sue letter has been issued, the 
Commissioner shall be a part\ to all settlements of complaints 
tiled with the Commissioner pursuant to REDA. 



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APPROVED RULES 



History: hi ote: Authority G.S. 95-245; 
Eff. April L 1999. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IN - DRINKING WATER 
TREATMENT FUND RULES 

SECTION .0400 - APPLICATIONS 

.0403 PROJECT SCHEDULE AND RESOLUTION 

Ever>' application shall be accompanied by a project 
schedule specifying dates for milestone events including: 



(1) 
(2) 
(3) 
(4) 
(5) 
(6) 



business plan submittal; 

plans and specifications submission and approval; 

a rate schedule submittal; 

bid opening and award; 

construction start; and 

project completion. 



Histoy Note: Authority G.S. I59G-5: 159G-15: 
Temporary Adoption Eff. January 31. 1998: 
Eff. .April I. 1999. 

SECTION .0600 - PRIORITY CRITERIA 

.0604 RELIABILITY 

A maximum of five points shall be awarded in the reliability' 
categorical element to projects that propose to increase the 
reliability of the water system; points may be awarded for both 
Items ( ] ) and (2) of this Rule up to the maximum, as follows: 

(1) Projects that provide redundancy to critical 
treatment or delivery functions, such as 
interconnection, but excluding projects that provide 
emergency backup electrical power source. 3 points; 

(2) Projects that provide emergency backup electrical 
power source, 3 points. 

History Note: Authority G.S. 159G-5: I59G-15: 
Temporaiy Adoption Eff January 3f 1998: 
Eff April !. 1999. 

SECTION .0700 - AWARD, COMMITMENT AND 
DISBURSEMENT OF LOANS 



adjustments under Rule .0703 of this Section. Any funds set 
aside for this purpose that are not used to adjust loans during a 
priority review period shall return to the account for the next 
priority review period. 

(c) The funds available in a priority review period shall be 
awarded in descending order of priority rating considering 
Section .0201(b) of this Subchapter except for projects that are 
not ready to proceed. A project shall be funded unless at the 
time of binding agreement: 

( 1 ) Project plans and specifications are not approved by 
the receiving agency; 

(2) Any environmental assessment or impact statement 
required is not complete and approved; 

(3) 100 percent funding necessary for the project is not 
committed; or 

(4) The receiving agency is unable to determine from 
review of the business plan and other information 
whether the applicant has the technical, managerial, 
and financial capacity to ensure compliance with the 
Act. 

History Note: Authority G.S. 159G-5: 159G-I5: 
Temporary Adoption Eff Jarmary 31. 1998: 
Eff. April 1. 1999. 

.0703 CRITERIA FOR LOAN ADJUSTMENTS 

Upon receipt of bids, a loan commitment may be adjusted as 
follows: 

(1) The loan commitment may be decreased by the 
receiving agency provided; the project cost as bid is 
less than the estimated project cost; 

(2) The loan commitment may be increased a maximum 
of 10 percent by the receiving agency provided: the 
project cost as bid is greater than the estimated 
project cost; the project as bid is in accordance with 
the project for which the loan commitment was 
made: the receiving agency has reviewed the bids 
and determined that substantial cost savings would 
not be available through project revisions without 
jeopardizing the integrity of the project; and 
adequate funds are available in the Fund. Increases 
greater than 10 percent of the loan commitment 
require approval by the Local Government 
Commission. 

History Note: Authority G.S. 159G-5: 159G-15: 
Temporary Adoption Eff. January 31. 1998: 
Eff .April 1, 1999. 



.0701 DETERMINATIONOF AWARDS AND 
BYPASS PROCEDURES 

(a) All funds appropriated for a fiscal year and all other 
funds accruing from loan principal repayments, interest 
payments, interest earned on funds, excess funds not awarded 
in the previous priority review period, and any other source, 
shall be available for loans during the priority review period. 

(b) Of the funds available at the beginning of a priority 
review period, five percent shall be set aside for potential 



SUBCHAPTER lO - ENVIRONMENTAL HEALTH 

SECTION .0100 - DELEGATION OF AUTHORITY 

TO ENFORCE THE COMMISSION FOR 

HEALTH SERVICES SANITATION RULES 

.0102 ELIGIBILITY FOR DELEGATION OF 
AUTHORITY 

(a) The applicant for authorization shall successfulK 



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APPROVED RULES 



complete the centralized training course provided by the 
Division. 

(b) The applicant shall successfully complete field practice 
by evaluating sites and establishments with an authorized 
environmental health specialist to assure that the applicant 
knows the rules of the Commission and how to properly 
enforce them. 

(c) When the supervisor determines that the applicant has 
progressed sufficiently to work independently, the applicant 
may request to be evaluated for authorization. Documentation 
of the satisfactory completion of all required orientation 
activities and field practice, including any inspection or 
evaluation forms completed by the applicant and comments of 
the supervisor shall be forwarded to the regional specialist. 

(d) If, upon reviewing the file, the regional specialist finds 
that the applicant needs additional study or field practice, the 
evaluation for authorization may be postponed until that study 
or practice has been completed. 

(e) Upon satisfactory completion of the requirements in 
Paragraphs (a)-(d) of this Rule, the regional specialist shall 
coordinate the administration of a written test which the 
applicant must pass by a score of 70 percent or more. The test 
may be repeated if necessary. 

(f) An applicant requesting authorization for 1 5 A NCAC 
18A .3100 Lead Poisoning Prevention in Children Program 
shall take and successfully complete the North Carolina State 
of Practice course entitled "Lead Investigation and Abatement" 
and shall pass the written test provided by that course. An 
applicant requesting authorization for only 15A NCAC 18A 
Lead Poisoning Prevention in Children Program shall not be 
required to take the exam required in Paragraph (e) of this 
Rule. 

(g) After the applicant has successfully completed the 
written test, the regional specialist shall conduct a field 
evaluation of the applicant's knowledge, skills, and ability to 
enforce the provisions of G.S. BOA and the rules of the 
Commission. Following the field evaluation, the regional 
specialist shall make a recommendation to the Director of the 
Division of Environmental Health regarding issuance or denial 
of authorization. 

History Note: Authorit}' G.S. 130.4-4: 
Temporary Adoption Eff. March 1, 1998: 
Eff. .April 1. 1999. 

.0104 LAPSED DELEGATIONS 

When one or more areas of authorization has lapsed, an 
applicant for reauthorization shall comply with the following: 

(1) An individual whose authorization in an area of 
authorization has lapsed for a period of up to three 
years shall complete training, which may also 
include portions of the centralized training course, 
as determined by the regional specialist after a field 
evaluation of the applicant's knowledge, skills, and 
ability to enforce the rules. 

(2) An individual whose authorization in an area of 
authorization has lapsed for a period of three years 
to five years shall meet all of the requirements 



which apply to new applicants, except that the 
individual shall be required to attend only the 
portions of the centralized training course which are 
directly applicable to the area of authorization 
requested. 
(3) An individual whose authorization in an area of 
authorization has lapsed for a period longer than 
five years shall meet all requirements which apply to 
new applicants. 

Histoiy Note: Authorit}' G.S. 130A-4; 
Temporaiy Adoption Eff. March I. 1998\ 
Eff. April !. 1999. 

.0105 AGENTS SERVING AS CONTRACTORS 

(a) An agent who is authorized in a specific local health 
department may contract with another local health department 
to provide services to the other local health department. When 
a local health department contracts for such services, the 
contracting department shall provide a statement to the 
Division on progress made to employ an individual who may 
be considered for authorization. 

(b) A contract shall be created between the contracting local 
health department and the agent (contractor) to include at least 
the following provisions: 

( 1 ) Names and addresses of each party. 

(2) Scope of work to be performed. 

(3) A requirement that the original public records 
remain in the local health department in which the 
work is performed. The public records shall be left 
at the local health department or with an individual 
employed by the local health department who shall 
be responsible for returning said records to the local 
health department within two business days of the 
service provided. 

(4) Designation of the party responsible for maintaining 
public records created by the agent. 

(5) A requirement that the contracting agent be 
available for consultation to the public being served 
during usual business hours. 

(6) A requirement that the contracting agent be available 
for any hearing or other legal proceeding which may 
ensue from activities conducted by the agent. 

(c) The contracting agent shall maintain a list of each 
activity and the date performed for review in accordance with 
Paragraph (d) of this Rule. 

(d) Each public record created by the contracting agent shall 
be reviewed, dated, and initialed by an authorized agent of the 
contracting local health department. In addition, at least 10 
percent of the activities performed by the agent shall be 
reviewed in the field by an authorized agent employed by the 
contracting local health department. If the contracting local 
health department has no authorized agent, the Division shall 
conduct a review of each public record created by the 
contracting agent. In addition, at least 10 percent of the 
activities performed by the agent shall be reviewed on-site in 
the field by the Division. The review shall be conducted each 
month and shall cover the previous month's activities 



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APPROVED RULES 



conducted by the agent. 

History Note: Authority G.S. 130A-4: 
Temporary Adoption Eff. March 1, 1998; 
Eff. April 'l, 1999. 

.0107 DENIAL, SUSPENSION AND REVOCATION 

(a) The Director. Division of Environmental Health, may 
deny, suspend, or revoke the authorization to act as an agent of 
the State for any of the following: 

(1) failure to satisfy the requirements for authorization 
in Rules .01 01, .01 02 .0103. .0105 and .0106 of this 
Section; 

(2) fraud, deceit, dishonesty, or perjury in obtaining 
authorization or in performing authorized duties; 

(3) drug or alcohol induced intoxication on duty; 

(4) incompetency or unprofessionalism in performing 
authorized duties; 

{ 5 ) neglect of duty; or 

(6) failure to properly interpret and enforce laws, rules, 
and policies. 

(b) The Director, Division of Environmental Health may 
place an individual on conditional status for a period not to 
exceed six months if the individual's failure to properly 
enforce laws, rules and policies may be corrected with 
additional education and oversight. The Director may suspend 
or revoke the authorization anytime during the conditional 
period if satisfactory progress is not made and the Director 
shall suspend or revoke the authorization after the conditional 
period if the individual does not demonstrate the necessary 
knowledge, skills and ability to warrant an unconditional 
authorization. 

History Note: Authority G.S. 130A-4: 
Tettiporary .Adoption Eff. March 1. 1998: 
Eff. .April !. 1999. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0200 - CLASSIFICATIONS AND 

WATER QUALITY STANDARDS APPLICABLE 

TO SURFACE WATERS AND WETLANDS OF 

NORTH CAROLINA 

.0248 RANDLEMAN LAKE WATER SUPPLY 

WATERSHED: NUTRIENT MANAGEMENT 
STRATEGY 

(a) All waters of the Randleman Lake (Deep River) water 
supply watershed are classified for water supply uses and 
designated by the Environmental Management Commission as 
a Critical Water Supply Watershed pursuant to G.S. 143- 
214.5(b). The following rules shall be implemented for the 
entire drainage area upstream of the Randleman Lake Dam: 
(I) Rule .0249 of this Section for Wastewater 
Discharges, 



(2) Rule .0250 of this Section for Protection and 
Maintenance of Riparian Areas, and 

(3) Rule .0251 of this Section for Urban Stormwater 
Management. 

(b) Failure to meet the requirements of the Rules in this 
Section may result in the imposition of enforcement measures 
as authorized by G.S. 143-215. 6A (civil penalties), G.S. 143- 
215.6B (criminal penalties), and G.S. 143-2 1 5. 6C (injunctive 
relief). 

(c) Development activities may be granted minor and major 
variances from the requirements of Rules .0250 and .0251 of 
this Section based on the process stated in 15A NCAC 2B 
.0104(r). However, for the purposes of Rules .0250 and .0251 
of this Section, minor and major variances shall be defined as 
a variance from the more stringent Randleman Lake 
stormwater management requirements for the lower watershed 
and the more stringent riparian area requirements for the upper 
and lower watersheds. 



History Note: Authority G. S. 143-214.1: 143-214.5: 
2I5.3(a)fl): 143-215.6.A: 143-215.6B: 143-215.6C: 
Eff. April 1, 1999. 



143- 



.0249 RANDLEMAN LAKE WATER SUPPLY 
WATERSHED: WASTE WATER DISCHARGE 
REQUIREMENTS 

The following is the National Pollutant Discharge 
Elimination System (NPDES) wastewater discharge 
management strategy for the Randleman Lake watershed. For 
purposes of this Rule, permitted wastewater discharges means 
those facilities permitted to discharge domestic wastewater or 
wastewaters containing phosphorus: 

(1) The City of High Point's Eastside facility shall meet 
a total phosphorus concentration predicted to 
provide a level of water qualirv in the Randleman 
Lake which meets all designated uses of those 
waters. 

(2) There shall be no new or expanding permitted 
wastewater discharges in the watershed with the 
exception that the City of High Point Eastside 
wastewater treatment plant may be allowed to 
expand provided that any new permit contains 
concentration and mass limits predicted to provide a 
level of water quality in the Randleman Lake which 
meets all designated uses of those waters. 

Histon'Note: Authorin' G. S. 143-214.1: 143-214.5: 143- 

215.3(a)(1): 

Eff. April 1, 1999. 

.0250 RANDLEMAN LAKE WATER SUPPLY 
WATERSHED: PROTECTION AND 

MAINTENANCE OF RIPARIAN AREAS 

The following is the management strategy for maintaining 
and protecting riparian areas in the Randleman Lake 
watershed: 

(1) Within 270 days of the effective date of this Rule, 
all local governments with jurisdictions in the 



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APPROVED RULES 



Randleman Lake watershed shall submit to the EMC 
for approval, local water supply ordinances, or 
modifications to existing ordinances, which include 
protection of riparian areas as provided in this Rule. 
Local governments shall use the following 
provisions in applying this Rule: 

(a) Riparian areas shall be protected and 
maintained in accordance with this Rule on 
all sides of surface waters in the Randleman 
Lake watershed such as intermittent streams, 
perennial streams, lakes, and ponds, as 
indicated on the most recent version of either 
the United States Geological Survey l;24,000 
scale (7.5 minute quadrangle) topographic 
maps or the Soil Survey maps developed by 
USDA-Natural Resource Conservation 
Service, or other site-specitlc evidence that 
indicates to the Division of Water Quality 
(DWQ) the presence of waters not shown on 
either of these two maps or, as provided in 
Sub-Item (2)(b) of this Rule, evidence that no 
actual stream or waterbody exists; 

(b) Local governments may. if they choose to do 
so. develop detailed stream network maps for 
the watershed based on these USGS and 
USDA-NRCS maps or criteria, approved by 
the Division of Water Quality, showing the 
presence or absence of a stream. These maps 
shall be submitted to the Division for 
approval by an> local government wishing to 
use this method of implementation of riparian 
area protection. After these detailed stream 
network maps are approved by the Division, 
riparian areas shall be protected and 
maintained in accordance with this Rule on 
all sides of surface waters in the Randleman 
Lake watershed as delineated on these 
approved stream network maps; and 

(c) Exceptions to the requirements of this Rule 
for riparian areas are described in Sub-Items 
(2)(a)-(h) of this Rule. Maintenance of the 
riparian areas shall be such that, to the 
maximum extent possible, sheet flow of 
surface water is achieved. This Rule 
specifies requirements that shall be 
implemented in riparian areas to ensure that 
the pollutant removal functions of the riparian 
area are protected and maintained. All local 
governments that have land use authority 
within the proposed Randleman Lake water 
supply watershed shall adopt and enforce this 
Rule through local water supply and other 
local ordinances. Ordinances shall require 
that all riparian protection areas are recorded 
on new or modified plats. No building 
permits shall be issued and no new 
development shall take place in violation of 
this Rule. 



(2) The following waterbodies and land uses are exempt 
from the riparian area protection requirements: 

(a) Ditches and manmade conveyances, other 
than modified natural streams, which under 
normal conditions do not receive drainage 
from any tributary ditches, canals, or streams, 
unless the ditch or manmade conveyance 
delivers runoff directly to waters classified in 
accordance with 15A NCAC 2B .0100; 

(b) Areas mapped as intermittent streams, 
perennial streams, lakes, ponds, or estuaries 
on the most recent versions of United States 
Geological Survey 1 :24,000 scale (7.5 minute 
quadrangle) topographic maps or soil survey 
maps where no perennial waterbody, 
intermittent waterbody, lake, pond or estuary 
actually exists on the ground; 

(c) Ponds and lakes created for animal watering, 
irrigation, or other agricultural uses that are 
not part of a natural drainage way that is 
classified in accordance with 15A NCAC 2B 
.0100; 

(d) Water dependent structures as defined in 15A 
NCAC 2B .0202, provided that they are 
located, designed, constructed and maintained 
to provide maximum nutrient removal, to 
have the least adverse effects on aquatic life 
and habitat and to protect water quality ; 

(e) The following uses where no practical 
alternative exists. A lack of practical 
alternatives may be shown by demonstrating 
that, considering the potential for a reduction 
in size, configuration or density of the 
proposed activity and all alternative designs, 
the basic project purpose cannot be 
practically accomplished in a manner which 
would avoid or result in less adverse impact 
to surface waters. Also, these structures shall 
be located, designed, constructed, and 
maintained to have minimal disturbance, to 
provide maximum nutrient removal and 
erosion protection, to have the least adverse 
effects on aquatic life and habitat, and to 
protect water qualitv' to the maximum extent 
practical through the use of best management 
practices: 

(i) Road crossings, railroad crossings, 
bridges, airport facilities, and utilitv 
crossings if conditions specified in 
Sub-ltem(2)(e) of this Rule are met. 

(ii) Stormwater management facilities and 
ponds, and utility construction and 
maintenance corridors for utilities such 
as water, sewer or gas. in Zone 2 of the 
riparian area as long as the conditions 
specified in Sub-Item (2)(e) of this 
Rule are met and they are located at 
least 30 feet from the top of bank or 



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APPROVED RULES 



mean high water line. Additional 
requirements for utility construction 
and maintenance corridors are listed in 
Sub-Item (2)(f) of this Rule; 

(f) A corridor for the construction and 
maintenance of utility lines, such as water, 
sewer or gas, (including access roads and 
stockpiling of materials) running parallel to 
the stream and located within Zone 2 of the 
riparian area, as long as no practical 
alternative exists, as defined in Sub-Item (2) 
(e) of this Rule, and best management 
practices are installed to minimize runoff and 
maximize water quality protection to the 
maximum extent practicable. Permanent, 
maintained access corridors shall be restricted 
to the minimum width practicable and shall 
not exceed !0 feet in width except at manhole 
locations. A 10 feet by 10 feet perpendicular 
vehicle turnaround shall be allowed provided 
they are spaced at least 500 feet apart along 
the riparian area; 

(g) Stream restoration projects, scientific studies, 
stream gauging, water wells, passive 
recreation facilities such as boardwalks, trails, 
pathways, historic preservation and 
archaeological activities, provided that they 
are located in Zone 2 and are at least 30 feet 
from the top of bank or mean high water line 
and are designed, constructed and maintained 
to provide the maximum nutrient removal and 
erosion protection, to have the least adverse 
effects on aquatic life and habitat, and to 
protect water quality to the maximum extent 
practical through the use of best management 
practices. Activities that must cross the 
stream or be located within Zone 1. are 
allowed as long as all other requirements of 
this Item are met; and 

(h) Stream crossings associated with timber 

harvesting, if performed in accordance with 

the Forest Practices Guidelines Related to 

Water Quality ( 1 5 A NC AC I J .020 1 -.0209). 

(3) The protected riparian area shall have two zones as 

follows: 

(a) Zone 1 is intended to be an undisturbed area 
of vegetation. 

(i) Location of Zone 1: Zone 1 begins at 
the top of bank for intermittent streams 
and perennial streams and extends 
landward a distance of 30 feet on all 
sides of the waterbody, measured 
horizontally on a line perpendicular to 
the waterbody. For all other 
waterbodies. Zone 1 begins at the top 
of bank or mean high water line and 
extends landward a distance of 30 feet, 
measured horizontalK on a line 



perpendicular to the waterbody. 
(ii) The following practices and activities 
are allowed in Zone 1 : 

(A) Natural regeneration of forest 
vegetation and planting 
vegetation to enhance the 
riparian area if disturbance is 
minimized, provided that any 
plantings shall primarily consist 
of locally native trees and 
shrubs; 

(B) Selective cutting of individual 
trees in Zone 1. where forest 
vegetation as defined in Rule 
.0202 of this Section exists, as 
long as the following conditions 
are met every 100 feet on each 
side of the stream; 



(I) 



(II) 



Of existing trees 12- 
inches and greater 
diameter breast height 
(dbh). a minimum of five 
trees must remain uncut; 
Trees 12-inches and 
greater dbh may be 
harvested based on the 
fol lo wingeq uat ion : 
Number of Trees 
harvested = (Total 
number of trees greater 
than 12-inches dbh - 5) / 



(HI) 



No trees less than 12- 
inches dbh may be 
harvested unless 

exceptions provided in 
this Rule are met; 
(IV) Trees may not be 
harvested more 

frequently than eveiT 10 
years; and 
(V) No tracked or wheeled 
equipment are allowed; 

(C) Horticulture or silvicultural 
practices to maintain the health 
of individual trees; 

(D) Removal of individual trees 
which are in danger of causing 
damage to dwellings, other 
structures or the stream channel; 

(E) Removal of dead trees and other 
timber cutting techniques 
necessar> to prevent extensive 
pest or disease infestation if 
recommended by the Director. 
Division of Forest Resources 
and approved b} the Director. 
Division of Water Qualitv; and 



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APPROVED RULES 



(F) Ongoing agricultural operations 
provided that existing forest 
vegetation is protected, 
(iii) The following practices are not 
allowed in Zone 1: 

(A) Land-disturbing activities and 
placement of fill and other 
materials, other than those 
allowed in Items (2) and 
(3){a)(ii) of this Rule; 

(B) New development, except as 
provided in Sub-Items (2)(d). 
(2)(e) and (2)(f) of this Rule; 

(C) New on-site sanitarv' sewage 
systems which use ground 
adsorption; 

(D) The application of fertilizer; and 

(E) Any activity that threatens the 
health and function of the 
vegetation including, but not 
limited to, application of 
chemicals in amounts exceeding 
the manufacturer's 
recommended rate, uncontrolled 
sediment sources on adjacent 
lands, and the creation of any 
areas with bare soil. 

(b) Zone 2 is intended to provide protection 

through a vegetated riparian zone which 

provides for diffusion and infiltration of 

runoff and filtering of pollutants. 

(i) Location of Zone 2; Zone 2 begins at 

the outer edge of Zone I and extends 

landward a minimum of 20 feet as 

measured horizontally on a line 

perpendicular to the waterbody. The 

combined minimum width of Zones 1 

and 2 shall be 50 feet on all sides of 

the waterbody. 

(ii) The following practices and activities 

are allowed in Zone 2 in addition to 

those allowed in Zone I : 

(A) Periodic mowing and removal 
of plant products such as timber, 
nuts, and fruit is allowed 
provided the intended purpose 
of the riparian area is not 
compromised by harvesting, 
disturbance, or loss of forest or 
herbaceous ground cover; and 

(B) Grading and timber harvesting 
provided that vegetated ground 
cover be established 
immediately following 
completion of the land- 
disturbing activity. 

(iii) The fallowing practices and activities 
are not allowed in Zone 2: 



(A) New development, except as 
provided in Sub-Items (2)(e) 
and (2)(f) of this Rule; 

(B) New on-site sanitary sewage 
systems which use ground 
adsorption; 

(C) Any activity that threatens the 
health and function of the 
vegetation including, but not 
limited to, application of 
chemicals in amounts exceeding 
the manufacturer's 
recommended rate, uncontrolled 
sediment sources on adjacent 
lands, and the creation of any 
areas with bare soil. 

(4) Timber removal and skidding of trees shall be 
directed away from the water course or water body. 
Skidding shall be done in a manner to prevent the 
creation of ephemeral channels perpendicular to the 
water body. Any tree removal must be performed in 
a manner that does not compromise the intended 
purpose of the riparian area and is in accordance 
with the Forest Practices Guidelines Related to 
Water Quality (15ANCAC IJ .0201 -.0209). 

(5) Maintenance of sheet flov\ in Zones 1 and 2 is 
required in accordance with this Item. 

(a) Sheet flow must be maintained to the 
maximum extent practical through dispersing 
concentrated flow and re-establishment of 
vegetation to maintain the effectiveness of the 
riparian area. 

(b) Concentrated runoff from new ditches or 
manmade conveyances must be dispersed into 
sheet flow before the runoff enters Zone 2 of 
the riparian area. Existing ditches and 
manmade conveyances, as specified in Sub- 
Item (2)(a) of this Rule, are exempt from this 
requirement; however, care shall be taken to 
minimize pollutant loading through these 
existing ditches and manmade conveyances 
from fertilizer application or erosion. 

(c) Periodic corrective action to restore sheet 
flow shall be taken b\ the landowner if 
necessary to impede the formation of erosion 
gullies which allow concentrated flow to 
bypass treatment in the riparian area. 

(6) Periodic maintenance of modified natural streams 
such as canals is allowed provided that disturbance 
is minimized and the structure and function of the 
riparian area is not compromised. A grassed 
travelway is allowed on one side of the waterbody 
when altemative forms of maintenance access are 
not practical. The width and specifications of the 
travelway shall be only that needed for equipment 
access and operation. The travelway shall be 
located to maximize stream shading. 

(7) Where the standards and management requirements 



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1419 



APPROVED RULES 



for riparian areas are in conflict with other laws, 
regulations, and permits regarding streams, steep 
slopes, erodible soils, wetlands, floodplains, forest 
harvesting, surface mining, land disturbance 
activities, or other environmental protection areas, 
the more protective shall apply. 
(8) The existing water supply requirement in Rule 2B 
.0216(3)(b) of this Section that stipulates a 100 foot 
vegetated buffer, adjacent to perennial streams, for 
all new development activities which utilize the high 
density option, applies to the entire Randleman Lake 
watershed. The first 50 feet of these riparian areas 
on either side of these waters must also be protected 
in accordance with all the requirements of this Rule. 

History Note: Authority G.S. 143-214.1: 143-214.5: 143- 

215.3(a)il). 

Eft: April I, 1999. 

.0251 RANDLEMAN LAKE WATER SUPPLY 
WATERSHED: STORMWATER 
REQUIREMENTS 

The following is the urban stormwater management strategy 
for the Randleman Lake watershed: 

(1) All local governments that have land use authority 
within the Randleman Lake watershed shall comply 
with stormwater management requirements as 
outlined in this Rule. Although the management 
requirements for the upper and the lower portions of 
the watershed are similar, additional density-related 
stormwater requirements apply to the lower portion 
of this watershed that do not apply to the upper 
portion of the watershed. The upper portion of the 
watershed is defined as those waters and lands of 
the Deep River watershed which drain to the 
Oakdale-Cotton Mill Dam. The lower portion of the 
watershed are those waters and lands of the Deep 
River upstream and draining to the Randleman Lake 
Dam. from the Oakdale-Cotton Mill Dam to the 
Randleman Dam. 

(2) To meet the requirements of this Rule, the local 
governments with jurisdictions in the upper portion 
of the Randleman Reservoir watershed shall meet 
the state's rules for a WS-IV classification as 
specified in ISA NCAC 2B .0104. .0202 and .0216. 
the conditions specified in their existing ordinances, 
the riparian area protection requirements of Rule 
.0250 of this Section, along with the stonnwater 
planning requirements set forth in Sub-Items (4), 
(5), and (6) of this Rule. 

(3) To meet the requirements of this Rule, local 
governments with jurisdictions in the lower portion 
of the Randleman Lake watershed shall meet the 
provisions of Sub-Items (4), (5) and (6) of this Rule 
along with the following: 

(a) Within 270 days of the effective date of this 
Rule. the affected jurisdictions. in 
coordination with the Piedmont Triad 



Regional Water Authority, shall submit local 
water supply ordinances to the Environmental 
Management Commission for approval. The 
ordinances shall at least meet the state's 
minimum rules for a WS-IV classification as 
specified in 15A NCAC 2B .0104, .0202 and 
.0216, except that the requirements of this 
Sub-Item shall replace the nonpoint source 
requirements in ISA NCAC 28 .0216(3)(b) 
for the lower portion of the Randleman Lake 
watershed, 
(b) The local ordinances shall provide for review 
and approval of stonnwater management 
plans for new developments to ensure that the 
following conditions can be met: 
(i) Stormwater pollution control criteria 

for the Randleman Lake watershed 

outside of critical area: 

(A) Low Density Option: For each 
development project, 
development density must be 
limited to either no more than 
one dwelling unit per acre of 
single family detached 
residential development (or 
40.000 square foot lot excluding 
roadwas' right-of-way) or 12 
percent built-upon area for all 
other residential and non- 
residential development. 
Stonnwater runoff shall be 
transported primariK by 
vegetated conveyances. 
Conveyance system shall not 
include a discrete stonnwater 
collection system as defined in 
Rule ISA NCAC 2B .0202; 

(B) High Density Option: If new 
development exceeds the low 
density option requirements as 
stated in Sub-Item (2)(bKi) of 
this Rule, then engineered 
stormwater controls must be 
used to control runoff from the 
first inch of rainfall. 
Engineering controls ma\ 
consist of wet detention ponds 
designed in accordance with 
15A NCAC 2H .1000 or 
alternative stormwater 
management systems consisting 
of other treatment options, or a 
combination of options, that are 
approved by the Director of the 
Division of Water Quality in 
accordance with 1 5 A NCAC 2B 
.0104(g). New residential and 
non residential development 



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shall not exceed 50 percent 

buiit-upon area, unless an 

alternative high density option is 

submitted to the Commission as 

part of the submittal of the local 

water supply watershed 

protection ordinance and 

determined by the Commission 

to provide equal or greater water 

quality protection in Randleman 

Reservoir and its tributaries; 

(C) Cluster development shall be 

allowed on a project-by-project 

basis as follows: 

(I) overall density of the 

project meets associated 

density or stormwater 

control requirements of 

this Section; 

(II) buffers meet the 

minimum statewide water 

supply watershed 

protection requirements 

and those specified for 

the Randleman Lake 

watershed riparian areas 

in Rule .0250 of this 

Section; 

(III) built-upon areas are 
designed and located to 
minimize stormwater 
runoff impact to the 
receiving waters, 
minimize concentrated 
stormwater flow, 
maximize the use of sheet 
flow through vegetated 
areas, and maximize the 
flow length through 
vegetated areas; 

(IV) areas of concentrated 
development are located 
in upland areas and away, 
to the maximum extent 
practicable, from surface 
waters and drainageways; 

(V) remainder of tract to 
remain in vegetated or 
natural state by utilization 
of one of the methods 
provided in Sub-Item 
3(b)(iKC)(VI) of this 
Rule; 

(VI) area in the vegetated or 
natural state may be 
conveyed to a property 
owners association: a 
local government for 



preservation as a park or 
greenway; a conservation 
organization; or placed in 
a permanent conservation 
or farmland preservation 
easement; 
(VII) a maintenance agreement 
for the vegetated or 
natural area shall be filed 
with the Register of 
Deeds; and 
(VIII) cluster development that 
meets the applicable low 
density option 

requirements shall 

transport stormwater 

runoff from the 

development by 

vegetated conveyances to 
the maximum extent 
practicable; 

(D) If local governments choose the 
high density development option 
which requires engineered 
stormwater controls, then they 
shall assume ultimate 
responsibility for operation and 
maintenance of the required 
controls as outlined in Rule 
.0104 of this Subchapter; 

(E) Impervious cover shall be 
minimized to the maximum 
extent practical through 
clustering, narrower and shorter 
paved areas (streets, driveways, 
sidewalks, cul-de-sacs, and 
parking lots), and spreading 
rooftop and other impervious 
area runoff over pervious areas. 
Land clearing during the 
construction process shall be 
limited to the maximum extent 
practical. The local government 
permit shall require recorded 
deed restrictions and protective 
covenants to ensure that 
development activities maintain 
the development consistent with 
the plans and specifications 
approved by the local 
governments; 

(F) The project is in compliance 
with the riparian area protection 
requirements as specified in 
15A NCAC 2B .0250 
(Randleman Lake riparian area 
rule); 

(G) No new development shall be 



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APPROVED RULES 



allowed within 50 feet of waters 
affected by the Randleman 
riparian area rule 15A NCAC 
2B .0250; 
(H) New development meeting the 
high density option shall be 
located at least 100 feet from 
perennial waters as identified on 
topo or soil survey maps; 
however, within the area 
between 50 and 100 feet 
adjacent to the perennial water 
body, water dependent 

structures, or other structures, 
such as flag poles, signs and 
security lights, which result in 
only diminimus increases in 
impervious area and public 
projects such as road crossings 
and greenways may be allowed 
where no practicable alternative 
exists; these activities shall 
minimize built-upon surface 
area, divert runoff away from 
surface waters and maximize the 
utilization of BMPs; 
(I) For local governments that do 
not use the high density option, 
a maximum of 10 percent of 
each jurisdiction's portion of 
the watershed outside of the 
critical area as delineated on 
April 1, 1999 may be developed 
with new development projects 
and expansions to existing 
development of up to 70 percent 
built-upon surface area in 
addition to the new development 
approved in compliance with the 
appropriate requirements of 
Sub-Item (3)(bMii)(A) of this 
Rule. For expansions to 
existing development, the 
existing built-upon surface area 
shall not be counted toward the 
allowed 70 percent built-upon 
surface area. A local 

government having jurisdiction 
within the watershed may 
transfer, in whole or in part, its 
right to the 10 percent/'70 
percent land area to local 
government within the 

watershed upon submittal of a 
joint resolution for review by 
the Commission. When the 
designated water supply 
watershed area is composed of 



public land, such as National 
Forest land, local governments 
may count the public land 
acreage within the designated 
watershed area outside of the 
critical area in figuring the 
acreage allowed under this 
provision. Each project shall, to 
the maximum extent practicable, 
minimize built-upon surface 
area, direct stormwater runoff 
away from surface waters and 
incorporate best management 
practices to minimize water 
quality impacts; 
(ii) Stormwater pollution control criteria 
for critical areas of the watershed: 

(A) Low Density Option: 
Development density must be 
limited to either no more than 
one dwelling unit per two acres 
of single family detached 
residential development (or 
80,000 square foot lot excluding 
roadway right-of-way) or six 
percent built-upon area for all 
other residential and non- 
residential development. 
Stormwater runoff shall be 
transported primarily by 
vegetated conveyances to the 
maximum extent practicable; 

(B) High Density Option: If new 
development exceeds the low 
density option requirements as 
stated in Sub-Item (3)(b)(ii) of 
this Rule, then engineered 
stormwater controls must be 
used to control runoff from the 
first inch of rainfall. New 
residential and non residential 
development shall not exceed 30 
percent built-upon area; 

(C) No new permitted sites for land 
application of residuals or 
petroleum contaminated soils 
shall be allowed; 

(D) No new landfills shall be 
allowed; and 

(E) Sub-Items (3)(b)(i)(CHH) of 
this Rule also apply to the 
critical area. 

(4) Within 12 months of the effective date of adoption 
of this Rule, all local governments with jurisdictions 
in the Randleman Lake watershed shall develop 
comprehensive stormwater management plans and 
submit those plans to the Commission for review 
and approval. Comprehensive stormwater 



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management plans meeting the criteria set forth in 
Subparts (4)(a) through (4)(f) of this Rule shall be 
approved. Within six months of the Commission's 
approval of the local plan, subject local governments 
shall adopt and implement their approved plan. 
Those plans shall include, but not be limited to, the 
following: 

(a) Evaluation of existing land use within Oak 
Hollow Lake subwatershed. High Point Lake 
subwatershed and Deep River 1 subwatershed 
in the Randleman Lake watershed with 
recommendations that show how overall 
built-upon area (for existing and future 
development) for each subwatershed can be 
minimized and high intensity land uses can be 
targeted away from surface waters and 
sensitive areas. Oak Hollow Lake 
subwatershed is defined as all land areas 
draining to Oak Hollow Lake. High Point 
Lake subwatershed is defined as all land areas 
draining to High Point Lake, East Fork Deep 
River and West Fork Deep River from Oak 
Hollow Lake Dam. Deep River 1 
subwatershed is defmed as all land areas 
draining to the Deep River from High Point 
Lake Dam to Freeman Mill Dam. This 
evaluation shall be done by the local 
governments having Jurisdiction in those 
watersheds, working in cooperation with the 
PTRWA; 

(b) Coordination between all affected 
jurisdictions to encourage their development 
in the existing urban areas. The planning 
effort shall include provisions for areas of 
contiguous open space to be protected 
through conservation easements or other 
long-term protection measures and provisions 
to direct infrastructure growth towards 
existing urban development corridors rather 
than to rural lands; 

(c) Evaluation of existing ordinances, municipal 
programs (maintenance, street cleaning, etc.) 
and other local policies to identify 
opportunities for stormwater qualitv' 
improvements including reducing the amount 
of built-upon area that is required for uses 
such as parking, building setbacks, road 
widths and cul-de-sacs. The evaluations shall 
consider development options such as 
multiple story buildings, mixed use to 
encourage pedestrian travel and mass transit 
and an identification of municipal activities 
and procedures that may be modified to allow 
for stormwater pollution prevention 
opportunities; 

(d) Implementation of watershed protection 
public education programs; 

(e) Identification and removal of illegal 



discharges; and 
(f) Identification of suitable locations for 
potential stormwater retrofits (such as 
riparian areas) that could be funded by 
various sources. 

(5) Local governments may submit a more stringent 
local stormwater management program plan. Local 
stormwater management programs and 
modifications to these programs shall be kept on file 
by the Division of Water Quality. 

(6) If a local government fails to submit an acceptable 
local stormwater management program plan within 
the time frames established in this Rule or fails to 
properly implement an approved plan, then 
stormwater management requirements for existing 
and new urban areas within its jurisdiction shall be 
administered through the NPDES municipal 
stormwater permitting program per 15A NCAC 2H 
.0126 which shall include at a minimum: 

(a) Subject local governments shall be required 
to develop and implement comprehensive 
stormwater management programs for both 
existing and new development. 

(b) These stormwater management programs 
shall provide all components that are required 
of local government stormwater programs in 
this Rule. 

(c) Local governments that are subject to an 
NPDES permit shall be covered by the permit 
for at least one permitting cycle (five years) 
before they are eligible to submit a revised 
local stormwater management component of 
their water supply watershed protection 
program for consideration and approval by 
the EMC. 

HistoiyNote: Authority G.S. 143-2 N.I: 143-2 1 4.5: 143- 
214.7: 143-215.1: 143-21 5. 3(a)(]): 
Efi: . April 1. 1999. 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0311 CAPE FEAR RIVER BASIN 

(a) Places where the schedules may be inspected: 
(1) Clerk of Court: 
Alamance County 
Bladen County 
Brunswick County 
Caswell County 
Chatham County 
Columbus County 
Cumberland County 
Duplin County 
Durham County 
Forsylh County 
Guilford County 
Harnett County 



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APPROVED RULES 



Hoke County 
Lee County 
Montgomery County 
Moore County 
New Hanover County 
Onslow County 
Orange County 
Pender County 
Randolph County 
Rockingham County 
Sampson County 
Wake County 
Wayne County 
(2) North CaroHna Department of Environment and 
Natural Resources: 

(A) Winston-Salem Regional Office 

8025 North Point Boulevard, Suite 100 
Winston-Salem, North Carolina 

(B) Fayetteville Regional Office 
Wachovia Building 

Suite 714 

Fayetteville, North Carolina 

(C) Raleigh Regional Office 
3800 Barrett Drive 
Raleigh. North Carolina 

(D) Washington Regional Office 
1424 Carolina Avenue 
Washington, North Carolina 

(E) Wilmington Regional Office 
127 Cardinal Drive Extension 
Wilmington. North Carolina 

(b) The Cape Fear River Basin Schedule of Classification 
and Water Quality Standards was amended effective; 

(1) March 1,1977; 

(2) December 13, 1979; 

(3) December 14. 1980; 

(4) August 9, 1981; 

(5) April 1. 1982; 

(6) December 1. 1983; 

(7) Januar> 1. 1985; 

(8) August 1. 1985; 

(9) December 1. 1985; 

(10) FebruaPv 1. 1986; 

(11) July 1. 1987; 

(12) October 1. 1987; 

(13) March 1.1988; 

(14) June I, 1988; 

(15) July 1,1988; 

(16) January 1. 1990; 

(17) August 1. 1990; 

(18) August 3. 1992; 

(19) September 1, 1994; 

(20) August 1, 1998; 

(21) April 1. 1999. 

(c) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin has been amended 
effective June 1, 1988 as follows: 

( 1 ) Cane Creek [Index No. 16-21-(1 )] from source to a 



point 0.5 mile north of N.C. Hwy. 54 (Cane 
Reservoir Dam) including the Cane Creek Reservoir 
and all tributaries has been reclassified from Class 
WS-111 to WS-1. 
(2) Morgan Creek [Index No. 16-41-1-(1)] to the 
University Lake dam including University Lake and 
all tributaries has been reclassified from Class 
WS-111 to WS-I. 

(d) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin has been amended 
effective July 1. 1988 by the reclassification of Crane Creek 
(Crains Creek) [index No. 18-23-16-(l)] from source to mouth 
of Beaver Creek including all tributaries from C to WS-III. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin has been amended 
effective January 1, 1990 as follows; 

(1) Intracoastal Waterway (Index No. 18-87) from 
southern edge of White Oak River Basin to western 
end of Permuda Island (a line from Morris Landing 
to Atlantic Ocean), from the eastern mouth of Old 
Topsail Creek to the southwestern shore of Howe 
Creek and from the southwest mouth of Shinn Creek 
to channel marker No. 153 including all tributaries 
except the King Creek Restricted Area, Hardison 
Creek, Old Topsail Creek, Mill Creek, Futch Creek 
and Pages Creek were reclassified from Class SA to 
Class SA ORW. 

(2) Topsail Sound and Middle Sound ORW Area which 
includes all waters beU\een the Barrier Islands and 
the Intracoastal Waterway located between a line 
running from the western most shore of Mason Inlet 
to the southwestern shore of Howe Creek and a line 
running from the western shore of New Topsail Inlet 
to the eastern mouth of Old Topsail Creek was 
reclassified from Class SA to Class SA ORW. 

(3) Masonboro Sound ORW Area which includes all 
waters between the Barrier Islands and the mainland 
from a line running from the southwest mouth of 
Shinn Creek at the Intracoastal Waterway to the 
southern shore of Masonboro Inlet and a line 
running from the Intracoastal Waterway Channel 
marker No. 153 to the southside of the Carolina 
Beach Inlet was reclassified from Class SA to Class 
SAORW. 

(0 The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin has been amended 
effective January I, 1990 as follows; Big Alamance Creek 
[Index No. I6-19-(I)] from source to Lake Mackintosh Dam 
including all tributaries has been reclassified from Class 
WS-III NSW to Class WS-II NSW. 

(g) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin was amended 
effective August 3. 1992 with the reclassification of all water 
supply waters (waters with a primary classification of WS-I, 
WS-II or WS-III). These waters were reclassified to WS-I, 
WS-II. WS-111, WS-IV or WS-V as defined in the revised 
water supply protection rules, (15A NCAC 2B .0100, .0200 
and .0300) which became effective on August 3, 1992. In 



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APPROVED RULES 



some cases, streams with primary classifications otiier than 
WS were reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In other cases, 
waters were reclassified from a WS classification to an 
alternate appropriate primar\ classification after being 
identified as downstream of a water supph' intake or identified 
as not being used for water supply purposes. 

(h) The Schedule of Classifications and Water Oualit> 
Standards for the Cape Fear River Basin was amended 
effective June 1, 1994 as follows: 

(1) The Black River from its source to the Cape Fear 
River [Index Nos. 18-68-(0.5), 18-68-(3.5) and 18- 
65-(ll.5)] was reclassified from Classes C Sw and 
C Sw HQW to Class C Sw ORW. 

(2) The South River from Big Swamp to the Black 
River [Index Nos. 18-68-l2-(0.5) and 18-68- 
12(1 1.5)] was reclassified from Classes C Sw and C 
Sw HQW to Class C Sw ORW. 

(3) Six Runs Creek from Quewhiffle Swamp to the 
Black River [Index No. 18-68-2] was reclassified 
from Class C Sw to Class C Sw ORW. 

(i) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin was amended 
effective September I, 1994 with the reclassification of the 
Deep River [Index No. 17-(36.5)] from the Town of Gulf- 
Goldston water supply intake to US highway 421 including 
associated tributaries from Class C to Classes C, WS-IV and 
WS-IV CA. 

(j) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin was amended 
effective August I, 1998 with the revision to the primary 
classification for portions of the Deep River [Index No. 17- 
(28.5)] from Class WS-IV to Class WS-V, Deep River [Index 
No. 17-(41.5)] from Class WS-IV to Class C, and the Cape 
Fear River [Index 18-(10.5)] from Class WS-IV to Class WS- 
V 

(k) The Schedule of Classifications and Water Qualit)' 
Standards for the Cape Fear River Basin was amended 
effective April 1, 1999 with the reclassification of Buckhom 
Creek (Harris Lake)[lndex No. 18-7-(3)] from the backwaters 
of Harris Lake to the Dam at Harris Lake from Class C to 
Class WS-V. 

(1) The Schedule of Classifications and Water Quality 
Standards for the Cape Fear River Basin was amended 
effective April 1, 1999 with the reclassification of the Deep 
River [Index No. 17-(4)] from the dam at Oakdale-Cotton 
Mills, Inc. to the dam at Randleman Reservoir (located 1.6 
mile upstream of U.S. Huy 220 Business), and including 
tributaries from Class C and Class B to Class WS-IV and 
Class WS-IV & B. Streams within the Randleman Reservoir 
Critical Area have been reclassified to WS-IV CA. The 
Critical Area for a WS-IV reservoir is defined as 0.5 mile and 
draining to the normal pool elevation of the reservoir. All 
waters within the Randleman Reservoir Water Supply 
Watershed are within a designated Critical Water Supply 
Watershed and are subject to a special management strategy 
specified in 1 5 A NCAC 2B .0248. 



History Note: Authority G.S. 1 43-2 14. 1: 143-215.1: 

143-215. 3(a)(1): 

Eff. Februaty 1. 1976: 

Amended Eff. April L 1999: August 1. 1998: September 1. 

1994: June 1. 1994: August 3. 1992: August 1. 1990. 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .1200 - CONTROL OF EMISSIONS 
FROM INCINERATORS 

.1208 OPERATOR TRAINING AND 
CERTIFICATION 

(a) Municipal Waste Combustors. 

(1) By Januan, 1, 2000, or six months after the date of 
startup of a municipal waste combustor located at a 
small municipal waste combustor plant, whichever is 
later, and by July 1, 1999 or six months after the 
date of startup of a municipal waste combustor 
located at a large municipal waste combustor plant, 
whichever is later: 

(A) Each facility operator and shift supervisor of 
a municipal waste combustor shall obtain and 
maintain a current provisional operator 
certification from the American Society of 
Mechanical Engineers (ASME QRO-1-1994). 

(B) Each facility operator and shift supervisor of 
a municipal waste combustor shall have 
completed full certification or shall have 
scheduled a full certification exam with the 
American Societv of Mechanical Engineers 
(ASME QRO- 1-1994). 

(C) The owner or operator of a municipal waste 
combustor plant shall not allow the facility to 
be operated at any time unless one of the 
following persons is on dut> at the affected 
facility: 

(i) a fully certified chief facility operator, 
(ii) a provisionally certified chief facilit\' 
operator who is scheduled to take full 
certification exam according to the 
schedule specified in Part (B) of this 
Subparagraph, 
(iii) a full\ certified shift supervisor, or 
(iv) a provisionally certified shift 
supervisor who is scheduled to take the 
full certification exam according to the 
schedule specified in Part (B) of this 
Subparagraph. 
If one of the persons listed in this Part leaves 
the affected facility' during their operating 
shift, a provisionally certified control room 
operator who is onsite at the affected facility 
may fulfill the requirements in this Part. 

(2) The owner or operator of a municipal waste 
combustor located at a small or large municipal 
waste combustor plant shall develop and update on a 



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1425 



APPROVED RULES 



yearly basis a site-specific operating manual that 
shall at the minimum address the elements of 
municipal waste combustor unit operation specified 
in Paragraphs (e)(1) through (e)(ll) of 40 CFR 
60.54b. 
(3) By July 1, 1999, or six months after the date of 
startup of a municipal waste combustor located at a 
small or large municipal waste combustor plant, 
whichever is later, the owner or operator of the 
municipal waste combustor plant shall comply with 
the following requirements: 

(A) All chief facility operators, shift supervisors, 
and control room operators shall complete the 
EPA municipal waste combustor training 
course. 

(i) The requirements specified in Part (A) 
of this Subparagraph shall not apply to 
chief facility operators, shift 
supervisors, and control room 
operators who have obtained full 
certification from the American 
Society of Mechanical Engineers on or 
before July 1, 1998. 
(ii) As provided under 40 CFR 
60.39b(c)(4)(iii) (B), the owner or 
operator may request that the 
Administrator waive the requirement 
specified in Part (A) of this 
Subparagraph for chief facility 
operators, shift supervisors, and 
control room operators who have 
obtained provisional certification from 
the American Society of Mechanical 
Engineers on or before July 1, 1998. 

(B) The owner or operator of a municipal waste 
combustor located at a small or large 
municipal waste combustor plant shall 
establish a training program to review the 
operating manual, according to the schedule 
specified in Subparts (i) and (ii) of this Part, 
with each person who has responsibilities 
affecting the operation of an affected facility, 
including the chief facilir>' operators, shift 
supervisors, control room operators, ash 
handlers, maintenance personnel, and crane- 
load handlers. 

(i) Each person specified in Part (B) of 
this Subparagraph shall undergo initial 
training no later than the date specified 
in Items (I) through (111) of this 
Subpart, whichever is later. 
(I) The date six months after the 
date of startup of the affected 
facility; 
(II) July 1, 1999: or 
(111) The date prior to the day when 
the person assumes 

responsibilities affecting 



municipal waste combustor unit 
operation, 
(ii) Annually, following the initial training 
required by Subpart (i) of this Part. 
(C) The operating manual required by 
Subparagraph (2) of this Paragraph shall be 
kept in a readily accessible location for all 
persons required to undergo training under 
Part (B) of this Subparagraph. The operating 
manual and records of training shall be 
available for inspection by the personnel of 
the Division on request. 
(4) The referenced ASME exam in this Rule is hereby 
incorporated by reference and includes subsequent 
amendments and editions. Copies of the referenced 
ASME exam may be obtained fi-om the American 
Society of Mechanical Engineers (ASME), 22 Law 
Drive. Fairfield, NJ 07007, at a cost of forty nine 
dollars ($49.00). 
(b) Hospital, Medical and Infectious Waste Incinerators. 

( 1 ) The owner or operator of a HMIWI shall not allow 
the HMIWI to operate at any time unless a fully 
trained and qualified HMIWI operator is accessible, 
either at the facility or available within one hour. 
The trained and qualified HMIWI operator may 
operate the HMIWI directly or be the direct 
supervisor on one or more HMIWI operators. 

(2) Operator training and qualification shall be obtained 
by completing the requirements of Paragraphs (c) 
through (g) of 40 CFR Part 60.53c. 

(3) The owner or operator of a HMIWI shall maintain, 
at the facilit>', all items required by Subparagraphs 
(h)( 1 ) through (h)( 10) of 40 CFR Part 60.53c. 

(4) The owner or operator of a HMIWI shall establish a 
program for reviewing the information required by 
Subparagraph (3) of this Paragraph annually with 
each HMIWI operator. The initial review of the 
information shall be conducted by January 1. 2000. 
Subsequent reviews of the information shall be 
conducted annually. 

(5) The information required by Subparagraph (3) of 
this Paragraph shall be kept in a readily accessible 
location for all HMIWI operators. This information, 
along with records of training shall be available for 
inspection by Division personnel upon request. 

(6) All HMIWI operators shall be in compliance with 
this Paragraph by July 1, 2000. 

HistoiyNote: Authohn- G.S. 143-215. 3(a)(1): 143- 
2l5.1()7(a)(10): 40 CFR 60. 35b: 40 CFR 60.34e: 
Eff.July I. 1998: 
Amended Eff. July 1. 1999. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3P - HEARING PROCEDURES 

SECTION .0200 - DECLARATORY RULINGS 



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.0202 PROCEDURE FOR REQUESTING 
DECLARATORY RULINGS 

(a) All requests for a declaratory ruling shall be filed in 
writing with the Director of the Division of Marine Fisheries, 
Department of Environment and Natural Resources (DENR). 
RO. Box 769. Morehead Cit>', North Carolina 28557. All 
requests shall include the following: the aggrieved person's 
name and address: the rule, statute or order upon which a 
ruling is desired; a concise statement as to whether the request 
is for a ruling on the validity' of a rule or on the applicabilit)' of 
a rule, order or statute to a given factual situation; arguments 
or data which demonstrate that the petitioner is aggrieved by 
the rule or statute or its potential application to him; a 
statement of the consequences of a failure to issue a 
declaratory ruling in favor of the petitioner: and a statement of 
whether an oral argument is desired, and, if so, the reasons for 
requesting such an oral argument. 

(b) A request for a ruling on the applicability of a rule, 
order, or statute must include a description of the factual 
situation on which the ruling is to be based. A request for a 
ruling on the validity of a Commission rule must state the 
aggrieved person's reasons for questioning the validity of the 
rule. A person may ask for both types of rulings in a single 
request. A request for a ruling must include or be 
accompanied by: 

( 1 ) a statement of the facts proposed for adoption by the 
Commission: and 

(2) a draft of the proposed ruling. 

(c) Before deciding the merits of the request, the 
Commission may: 

(1) request additional written submissions from 
petitioner(s): 

(2) request a written response from the Division staffer 
any other person; or 

(3) hear oral argument ft^om the petitioner(s) and 
Division staff. 

(d) Unless the Division waives the opportunity to be heard, 
it shall be a party to any request for declaratorv ruling. Upon 
written request, the requesting party and the Division may each 
be allowed to present oral arguments to the Commission at a 
regularly scheduled meeting. Neither party may offer 
testimony or conduct cross-examination before the 
Commission. The declaratory ruling shall be determined on 
the basis of the statement of facts submitted by the parties. 

(e) Whenever the Commission believes "for good cause" 
that the issuance of a declaratory ruling is undesirable, the 
Commission may refuse to issue such ruling. The Commission 
shall notifv in writing the person requesting the ruling, stating 
the reasons for the refusal to issue a ruling on the request. 

(f) For purposes of Subpart (e) of this Rule, the 
Commission shall ordinarily refuse to issue a ruling on a 
request for declaratory ruling on finding that: 

(1) the petitioner(s) and the Division cannot agree on a 
set of facts sufficient to support a meaningful ruling: 

(2) there has been a similar determination in a previous 
contested case or declaratory ruling: 

(3) the matter is the subject of a pending contested case 
hearing or litigation in any North Carolina or federal 



court: or 
(4) no genuine controversy exists as to the application 
of a statute or rule to the factual situation presented, 
(g) The Commission shall keep a record of each declaratory 
ruling, which shall include at a minimum the following items: 

(1) the request for a ruling; 

(2) any written submissions by the parties; 

(3) the statement of facts on which the ruling was 
based; 

(4) any transcripts of oral proceedings, or, in the 
absence of a transcript, a summary of all arguments; 

(5) any other matter considered by the Commission in 
making the decision: and 

(6) the declaratory ruling, or the decision to refuse to 
issue a declaratory ruling, together with the reasons 
therefore. 

(h) A declaratory ruling is binding on the Commission and 
the person requesting it unless it is altered or set aside b\ the 
court. The Commission may not retroactively change a 
declaratory ruling, but nothing in this Section prevents the 
Commission from prospectively changing a ruling. 

(i) Unless the requesting party consents to the delay, failure 
of the Commission to issue a ruling on the merits or deny the 
request within 60 days of receipt of the request for such ruling 
shall constitute a denial of the request as well as a denial of the 
merits of the request and shall be subject to judicial review. 



History Note: Authority 
I43B-289.53; I50B-4: 
Eft: April 1, 1999. 



G.S. 



113-134: 



113-182 



CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0300 - OCEAN HAZARD AREAS 

.0308 SPECIFIC USE STANDARDS FOR OCEAN 
HAZARD AREAS 

(a) Ocean Shoreline Erosion Control Activities: 
(1) Use Standards Applicable to all Erosion Control 
Activities: 

(A) All oceanfront erosion response activities 
shall be consistent with the general policy 
statements in 1 5A NCAC 7M .0200. 

(B) Permanent erosion control structures may 
cause significant adverse impacts on the value 
and enjoyment of adjacent properties or 
public access to and use of the ocean beach, 
and, therefore, are prohibited. Such 
structures include, but are not limited to: 
bulkheads; seawalls; revetments: jetties; 
groins and breakwaters. 

(C) Rules concerning the use of oceanfront 
erosion response measures appl>' to all 
oceanfront properties without regard to the 
size of the structure on the property or the 



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date of its construction. 

(D) All permitted oceanfront erosion response 
projects, other than beach bulldozing and 
temporary' placement of sandbag structures, 
shall demonstrate sound engineering for their 
planned purpose. 

(E) Shoreline erosion response projects shall not 
be constructed in beach or estuarine areas that 
sustain substantial habitat for important fish 
and wildlife species unless adequate 
mitigation measures are incorporated into 
project design, as set forth in Rule .0306(1) of 
this Section. 

(F) Project construction shall be timed to 
minimize adverse effects on biological 
activity. 

(G) Prior to completing any erosion response 
project, all exposed remnants of or debris 
from failed erosion control structures must be 
removed by the permittee. 

(H) Erosion control structures that would 

otherwise be prohibited by these standards 

may be permitted on finding that: 
(i) the erosion control structure is 
necessary to protect a bridge which 
provides the only existing road access 
to a substantial population on a barrier 
island; that is vital to public safety; and 
is imminently threatened by erosion; 

(ii) the erosion response measures of 
relocation, beach nourishment or 
temporary stabilization are not 
adequate to protect public health and 
safety; and 

(iii) the proposed erosion control structure 
will have no adverse impacts on 
adjacent properties in private 
ownership and will have minimal 
impacts on public use of the beach. 
(I) Structures that would otherwise be prohibited 

by these standards may also be permitted on 

finding that: 

(i) the structure is necessary to protect an 
historic site of national significance, 
which is imminently threatened by 
shoreline erosion; and 

(ii) the erosion response measures of 
relocation, beach nourishment or 
temporary stabilization are not 
adequate and practicable to protect the 
site; and 

(iii) the structure is limited in extent and 
scope to that necessary to protect the 
site; and 

(iv) any permit for a structure under this 
Part (1) may be issued only to a 
sponsoring public agency for projects 
where the public benefits clearly 



outweigh the short or long range 

adverse impacts. Additionally, the 

permit must include conditions 

providing for mitigation or 

minimization by that agency of any 

significant and unavoidable adverse 

impacts on adjoining properties and on 

public access to and use of the beach. 

(J) Structures that would otherwise be prohibited 

by these standards may also be permitted on 

finding that: 

(i) the structure is necessary to maintain 
an existing commercial navigation 
channel of regional significance within 
federally authorized limits; and 
(ii) dredging alone is not practicable to 
maintain safe access to the affected 
channel; and 
(iii) the structure is limited in extent and 
scope to that necessar>' to maintain the 
channel; and 
(iv) the structure will not result in 
substantial adverse impacts to fisheries 
or other public trust resources; and 
(v) any permit for a structure under this 
Part (J) may be issued only to a 
sponsoring public agency for projects 
where the public benefits clearly 
outweigh the short or long range 
adverse impacts. Additionally, the 
permit must include conditions 
providing for mitigation or 
minimization by that agency of any 
significant and unavoidable adverse 
impacts on adjoining properties and on 
public access to and use of the beach. 
(K) Proposed erosion response measures using 
innovative technology or design shall be 
considered as experimental and shall be 
evaluated on a case-by-case basis to 
determine consistency with 15A NCAC 7M 
.0200 and general and specific use standards 
within this Section. 
(2) Temporarv' Erosion Control Structures: 

(A) Permittable temporary erosion control 
structures shall be limited to sandbags placed 
above mean high water and parallel to the 
shore. 

(B) Temporary erosion control structures as 
defined in Part (2)(A) of this Subparagraph 
may be used only to protect imminently 
threatened roads and associated right of ways, 
and buildings and associated septic systenis. 
A structure will be considered to be 
imminently threatened if its foundation septic 
system, or right-of-way in the case of roads, is 
less than 20 feet away from the erosion scarp. 
Buildings and roads located more than 20 feet 



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from the erosion scarp or in areas where there 
is no obvious erosion scarp may also be found 
to be imminently threatened when site 
conditions, such as a flat beach profile or 
accelerated erosion, tend to increase the risk 
of imminent damage to the structure. 

(C) Temporary erosion control structures may be 
used to protect only the principal structure 
and its associated septic system, but not such 
appurtenances as gazebos, decks or any 
amenity that is allowed as an exception to the 
erosion setback requirement. 

(D) Temporary erosion control structures may be 
placed seaward of a septic system when there 
is no alternative to relocate it on the same or 
adjoining lot so that it is landward of or in 
line with the structure being protected. 

(E) Temporary erosion control structures must 
not extend more than 20 feet past the sides of 
the structure to be protected. The landward 
side of such temporary erosion control 
structures shall not be located more than 20 
feet seaward of the structure to be protected 
or the right-of-way in the case of roads. 

(F) A temporar>' erosion control structure may 
remain in place for up to two years after the 
date of approval if it is protecting a building 
with a total floor area of 5000 sq. ft. or less. 
or. for up to five years if the building has a 
total floor area of more than 5000 sq. ft. A 
temporary erosion control structure may 
remain in place for up to five years if it is 
protecting a bridge or a road. The property 
owner shall remove the temporary structure 
within 30 days of the end of the allowable 
time period. A temporary erosion control 
structure may remain in place for up to five 
years regardless of the size of the structure if 
the community in which it is located is 
actively pursuing a beach nourishment 
project. For purposes of this Rule, a 
community is considered to be actively 
pursuing a beach nourishment project if it 
has: 

(i) been issued a CAMA permit approving 

such project, or 
(ii) been deemed worthy of further 
consideration by a U.S. Army Corps of 
Engineers' Beach Nourishment 
Reconnaissance Study, or 
(iii) received a favorable economic 
evaluation report on a federal project 
approved prior to 1986. 

(G) Once the temporary erosion control structure 
is determined to be unnecessar)' due to 
relocation or removal of the threatened 
structure, it must be removed by the property 
owner within 30 days. 



(H) Removal of temporary erosion control 
structures shall not be required if they are 
covered by dunes with vegetation sufficient to 
be considered stable and natural. 
(1) The property owner shall remove remnants of 
all portions of any damaged temporary 
erosion control structure. 
(J) Sandbags used to construct temporary erosion 
control structures shall be tan in color and 
three to five feet wide and seven to 15 feet 
long when measured flat. Base width of the 
structure shall not exceed 20 feet, and the 
height shall not exceed six feet. 

(K) Soldier pilings and other types of devices to 
anchor sandbags shall not be allowed. 

(L) Construction of a temporary erosion control 
structure shall be approved only once on any 
propert)' regardless of ownership. 

(M) Existing sandbag structures may be 
maintained provided that the permitted 
dimensions are not exceeded. 

(N) Existing sandbag structures that have been 
properly installed prior to May 1. 1995 shall 
be allowed to remain in place according to the 
provisions of Parts (F). (G) and (H) of this 
Subparagraph with the pertinent time periods 
beginning on May 1. 1995. 

(3) Beach Nourishment/Spoil Disposal. 

(A) Sand used for beach nourishment shall be 
compatible with existing grain size and type. 
Sand to be used for beach nourishment shall 
be taken only from those areas where the 
resulting environmental impacts will be 
minimal. 

(B) At the commencement of any large scale 
beach nourishment or spoil deposition 
project, the vegetation line shall be located by 
DCM and surveyed by the project sponsor or 
permittee. Said line shall be used for setback 
determinations so long as the spoil deposition 
or beach nourishment project is being 
maintained. A project shall be considered 
large scale when: 

(i) it places more than a total volume of 
200.000 cubic yards of sand at an 
average ratio of more than 50 cubic 
yards of sand per linear foot of 
shoreline, or 

(ii) it is a Hurricane Protection project 
constructed by the U.S. Arm\' Corps of 
Engineers. 

(C) The vegetation lines in effect on the effective 
date of this Rule for Wrightsville Beach and 
Carolina Beach Hurricane Protection projects 
shall continue to be used after the effective 
date of this Rule. 

(4) Beach Bulldozing. Beach bulldozing (defined as the 
process of moving natural beach material from any 



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APPROVED RULES 



point seaward of the first line of stable vegetation to 
create a protective sand dike or to obtain material for 
any other purpose) is development and may be 
permitted as an erosion response if the following 
conditions are met: 

(A) The area on which this activity is being 
performed must maintain a slope of adequate 
grade so as to not endanger the public or the 
public's use of the beach and shall follow the 
pre-emergency slope as closely as possible. 
The movement of material utilizing a 
bulldozer, front end loader, backhoe, scraper, 
or any type of earth moving or construction 
equipment shall not exceed one foot in depth 
measured from the pre-activity surface 
elevation; 

(B) The activity must not exceed the lateral 
bounds of the applicant's property unless he 
has permission of the adjoining land 
owner(s); 

(C) Movement of material from seaward of the 
low water line will require a CAMA Major 
Development and State Dredge and Fill 
Permit; 

(D) The activity must not significantly increase 
erosion on neighboring properties and must 
not have a significant adverse effect on 
important natural or cultural resources; 

(E) The activity may be undertaken to protect 
threatened on-site waste disposal systems as 
well as the threatened structure's foundations. 

(b) Dune Establishment and Stabilization. Activities to 
establish dunes shall be allowed so long as the following 
conditions are met; 

(1) Any new dunes established shall be aligned to the 
greatest extent possible with existing adjacent dune 
ridges and shall be of the same general configuration 
as adjacent natural dunes. 

(2) Existing primary and frontal dunes shall not, except 
for beach nourishment and emergency situations, be 
broadened or extended in an oceanward direction. 

(3) Adding to dunes shall be accomplished in such a 
manner that the damage to existing vegetation is 
minimized. The filled areas will be immediately 
replanted or temporarily stabilized until planting can 
be successfully completed. 

(4) Sand used to establish or strengthen dunes must be 
of the same general characteristics as the sand in the 
area in which it is to be placed. 

(5) No new dunes shall be created in inlet hazard areas. 

(6) Sand held in storage in any dune, other than the 
frontal or primary dune, may be redistributed within 
the AEC provided that it is not placed any farther 
oceanward than the crest of a primary dune or 
landward toe of a frontal dune. 

(7) No disturbance of a dune area will be allowed when 
other techniques of construction can be utilized and 
alterative site locations exist to avoid unnecessary 



dune impacts. 

(c) Structural Accessways: 

( 1 ) Structural accessways shall be permitted across 
primary dunes so long as they are designed and 
constructed in a manner which entails negligible 
alteration on the primary dune. Structural 
accessways may not be considered threatened 
structures for the purpose of Paragraph (a) of this 
Rule. 

(2) An accessway shall be conclusively presumed to 
entail negligible alteration of a primary dune: 

(A) The accessway is exclusively for pedestrian 
use; 

(B) The accessway is less than six feet in width; 
and 

(C) The accessway is raised on posts or pilings of 
five feet or less depth, so that wherever 
possible only the posts or pilings touch the 
frontal dune. Where this is deemed 
impossible, the structure shall touch the dune 
only to the extent absolutely necessary. In no 
case shall an accessway be permitted if it will 
diminish the dune's capacity as a protective 
barrier against flooding and erosion; and 

(D) Any areas of vegetation that are disturbed are 
revegetated as soon as feasible. 

(3) An accessway which does not meet Part (2)(A) and 
(B) of this Paragraph shall be permitted only if it 
meets a public purpose or need which cannot 
otherwise be met and it meets Part (2)(C) of this 
Paragraph. Public fishing piers shall not be deemed 
to be prohibited by this Rule, provided all other 
applicable standards are met. 

(4) In order to avoid weakening the protective nature of 
primary and frontal dunes a structural accessway 
(such as a "Hatteras ramp") shall be provided for 
any off-road vehicle (ORV) or emergency vehicle 
access. Such accessways shall be no greater than 10 
feet in width and shall be constructed of wooden 
sections fastened together over the length of the 
affected dune area. 

(d) Construction Standards. New construction and 
substantial improvements (increases of 50 percent or more in 
value to the existing square footage) to existing construction 
shall comply with the following standards: 

( 1 ) In order to avoid unreasonable danger to life and 
property, all development shall be designed and 
placed so as to minimize damage due to fluctuations 
in ground elevation and wave action in a 100 year 
storm. Any building constructed within the ocean 
hazard area shall comply with the North Carolina 
Building Code and the local flood damage 
prevention ordinance as required by the National 
Flood Insurance Program. The building code or 
flood damage prevention ordinance may impose 
additional or more restrictive requirements than the 
following AEC standards. 

(2) All structures in the ocean hazard area shall be on 



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APPROVED RULES 



pilings not less than eight inches in diameter if 
round or eight inches to a side if square. 

(3) All pilings shall have a tip penetration greater than 
eight feet below the lowest ground elevation under 
the structure. For those structures so located on the 
primary dune or nearer to the ocean, the pilings must 
extend to five feet below mean sea level. 

(4) All foundations shall be adequately designed to be 
stable during applicable fluctuations in ground 
elevation and wave forces during a 100 year storm. 
Cantilevered decks and walkways shall meet this 
standard or shall be designed to break-away without 
structural damage to the main structure. 

Hisloiy Note: Filed as a Teinporary Amendment Eff. June 

20, 1989, for a period of 180 days to expire on December 17, 

1989: 

Authority G.S. 113 A- 107 (a): 1 ISA- 1 07(b): 

113A-113(b)(6)a..b..d: 113A-124: 

Eff. June 1. 1979: 

Amended Eff. August 3. 1992: December 1. 1991: March I. 

1990: December 1, 1989: 

RRC Objection Eff. November 19. 1992 due to ambiguity: 

RRC Objection Eff. January 21. 1993 due to ambiguit}-: 

Amended Eff. March 1, 1993: December 28. 1992: 

RRC Objection Eff. March 16, 1995 due to ambiguity: 

Ametided EjJ. January l_^ 1999: December 1. 1996: February' 

1. 1996: May 4. 1995. 

SUBCHAPTER 70 - NORTH CAROLINA 
COASTAL RESERVE 

SECTION .0100 - GENERAL PROVISIONS 

.0105 RESERVE COMPONENTS 

(a) The North Carolina Coastal Reserve includes the 
following components: 

( 1 ) Zeke's Island: 

(2) Rachel Carson; 

(3) Currituck Banks; 

(4) Masonboro Island; 

(5) Permuda Island: 

(6) Buxton Woods; 

(7) Bald Head Woods: and 

(8) Kitty Hawk Woods. 

The North Carolina National Estuarine Research Reserve 
includes components ( I )-(4). 

(b) Detailed boundary maps for each component are 
maintained and available for inspection at the Division of 
Coastal Management, P.O. Box 27687, Raleigh, North 
Carolina 2761 1-7687. 

HistoiyNote: Authorit\' G.S. 113-3: 113-8: 143B-10: 

Eff. July I 1986: 

Amended Eff. April 1, 1999: August 1, 1991 : .April 1. 1988. 

SECTION .0200 - MANAGEMENT: USE AND 
PROTECTION OF THE NORTH CAROLINA 



COASTAL RESERVE 

.0202 RESERVE USE REQUIREMENTS 

The following use requirements shall apply to all of the 
components of the Reserve: 

( 1 ) The essential natural character of the Reserve shall 
be maintained. 

(2) Traditional recreational uses within each component 
shall be allowed to continue as long as the activities 
do not disrupt the natural integrity of the Reserve or 
any research or educational projects. Incompatible 
traditional uses shall include: 

(a) fishing, hunting, or trapping activities not 
allowed by state rules; 

(b) target shooting; 

(c) hydraulic clam dredging within Reserve 
boundaries; 

(d) use of vehicles off designated corridors at 
components where vehicles are allowed for 
upland transportation according to the 
management plan; and 

(e) production of noise disruptive to local 
wildlife and the aesthetic enjoyment of the 
Reserve as a natural area. 

(3) No user shall disturb a research project or research 
equipment in place at the Reserve. 

(4) Camping or any form of habitation, whether on the 
uplands, wetlands, or waters within Reserve 
boundaries, shall not be allowed unless written 
permission is posted by the Division of Coastal 
Management. 

(5) Personal property not authorized by the management 
agency may not be placed within the boundaries of 
the Reserve for more than two consecutive days. 

(6) Users of the Reserve shall not disturb or remove any 
live animals, except those allowed by local or state 
hunting and fishing rules as they apply to the 
Reserve, or vegetation within the Reserve unless 
such action is part of a research or educational 
project approved by the management agency. 

(7) Persons wishing to engage in scientific research or 
collection of natural materials within the Reserve 
shall first secure written permission from the 
management agency. 

(8) No activity shall be allowed which might pollute any 
stream or body of water in the Reserve. Acts of 
pollution shall include: 

(a) Deposition of solid materials not indigenous 
to the local coastal ecosystem; and 

(b) Discharge of liquids other than 
uncontaminated estuarine water. 

(9) No other acts or uses which are detrimental to the 
maintenance of the property in its natural condition 
shall be allowed including, but not limited to. 
disturbances of the soil, mining, commercial or 
industrial uses, timber harvesting, ditching and 
draining, deposition of waste materials. 



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History- Note: Authority G.S. I43B-10: 

Eff.Julyl, 1986: 

Amended Eff April I, 1999: December 1. 1991: April 1. 1988. 

CHAPTER 8 - WATER POLLUTION CONTROL 

SYSTEM OPERATORS CERTIFICATION 

COMMISSION 

SUBCHAPTER 8G - AUTHORITY: ORGANIZATION: 

STRUCTURE: DEFINITIONS AND 

HEARING PROCEDURES 

SECTION .0400 - ELIGIBILITY REQUIREMENTS 
FOR EXAMINATIONS 

.0401 GENERAL REQUIREMENTS 

(a) An applicant for certification as an operator of a water 
pollution control system must meet the following criteria and 
possess the knowledge and abilities listed as they relate to the 
specific type of system for which certification is being sought 
and shall, at a minimum, include: 

( 1 ) a high school diploma or a general educational 
development (GED) equivalent; and 

(2) be at least 1 8 years of age; and 

(3) have a general knowledge of typical wastewater 
characteristics and treatment processes; and 

(4) the ability to: 

(A) read and understand the statutes and rules 
which govern water pollution control system 
operators and the operation of the type of 
system for which certification is being 
sought; and 

(B) perform mathematical calculations required to 
operate the system for which certification is 
being sought; and 

(C) complete and maintain logs and regulatory 
reporting forms required to document the 
proper operation of the system; and 

(D) a knowledge of the equipment employed in 
the operation of the type of system for which 
certification is being sought along with the 
ability to describe the general maintenance 
requirements for such equipment. 

(b) An applicant who has failed to achieve a passing score 
on a specific type and grade of examination after three 
consecutive attempts must: 

(1) attend, and satisfactorily complete, a training 
program sponsored or co-sponsored by the 
Commission of the same type and grade as the 
certification being sought; and 

(2) provide verification, in the form of a certificate of 
completion or other such documentation, of the 
satisfactory completion of the required training with 
any subsequent application made to the Commission 
to sit for the examination. 

(c) An applicant for certification shall not have had any 
certification revoked by the Commission within the 730 
calendar days period prior to the date of the application for 



certification. 

(d) An applicant for certification shall not be allowed to sit 
for any examination offered by the Commission during the 
period of a suspension of any certification held by the 
applicant with the Commission. 

(e) An applicant that holds a valid biological or collection 
certification of any level on April 1, 1999, may progress to the 
highest level of certification of the same type without meeting 
the requirements of Subparagraph (a)(1) of this Rule. 

History Note: A uthority G. S. 90 A- 39: 
Eff. April L 1999. 

.0402 ELIGIBILITY REQUIREMENTS FOR 
BIOLOGICAL WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

Eligibility for certification as a Biological Water Pollution 
Control System Operator shall be based on the following 
qualifications: 

( 1 ) for Grade I certification, the applicant must: 

have successfully completed a training school 
sponsored or co-sponsored by the Commission for 
Grade I Biological Water Pollution Control 

System operators. 

(2) for Grade II certification, the applicant must: 

(a) have 6 months of actual experience at a Grade 
II, or higher, biological water pollution 
control system; and 

(b) have successfully completed a training school 
sponsored or co-sponsored by the 
Commission for Grade II Biological Water 
Pollution Control System operators. 

(3) for Grade III certification, the applicant must: 

(a) hold a currently valid North Carolina Grade II 
Biological Water Pollution Control System 
Operator certificate; and 

(b) have successfulK' completed a training school 
sponsored or co-sponsored by the 
Commission for Grade III Biological Water 
Pollution Control System operators; and 

(i) have two years of actual experience at 
a Grade II, or higher, biological water 
pollution control system, or 
(ii) be a graduate of two or four year 
college or university and have taken, 
and passed, a minimum of six courses 
in the basic sciences and have 18 
months of actual experience at a Grade 
II, or higher, biological water pollution 
control s\stem. 

(4) for Grade IV certification, the applicant must: 

(a) hold a currently valid North Carolina Grade 
III Biological Water Pollution Control System 
Operator certificate; and 

(b) have successfully completed a training school 
sponsored or co-sponsored by the 
Commission for Grade IV Biological Water 
Pollution Control System operators; and 



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APPROVED RULES 



(i) have three years of actual experience at 
a Grade 111. or higher, biological water 
pollution control system, or 
(ii) be a graduate of a two or four year 
college or university and have taken, 
and passed, a minimum of six courses 
in the basic sciences and have two 
years of actual experience at a Grade 
III . or higher, biological water 
pollution control system. 

Histon Note: A uthority- G. S. 90 A- 39: 
Eft: April 1, 1999. 

.0403 ELIGIBILITY REQUIREMENTS FOR 
WATER POLLUTION CONTROL 
COLLECTION SYSTEM OPERATORS 

Eligibility for certification as a Water Pollution Control 
Collection System Operator shall be based on the following 
qualifications: 

(1) for Grade I certification, the applicant must: 

have successfully completed a training school 
sponsored or co-sponsored by the Commission for 
Grade I water pollution control collection system 
operators. 

(2) for Grade II certification, the applicant must: 

(a) hold a currently valid North Carolina Grade I 
Water Pollution Control Collection System 
Operator certificate; and 

(b) have six months of actual experience in water 
pollution control collection system 
operations; and 

(c) have successfully completed a training school 
sponsored or co-sponsored by the 
Commission for Grade II water pollution 
control collection system operators. 

(3) for Grade HI certification, the applicant must; 

(a) hold a currently valid North Carolina Grade II 
Water Pollution Control Collection System 
Operator certificate; and 

(b) have successfully completed a training school 
sponsored or co-sponsored by the 
Commission for Grade 111 water pollution 
control collection system operators, and 

(i) have t\\ o years of actual experience in 
water pollution control collection 
system operations, or 

(ii) be a graduate of a tvvo or four year 
college or university and have taken, 
and passed, a minimum of six courses 
in a field directly related to the 
construction. operation. and/or 
maintenance of a collection system, 
e.g. civil, mechanical, or environmental 
engineering, and have one year of 
actual experience in the operation of a 
water pollution control collection 
system. 



(4) for Grade IV certification, the applicant must; 

(a) hold a currently valid North Carolina Grade 
III Water Pollution Control Collection System 
Operator certificate; and 

(b) have successfulK completed a training school 
sponsored or co-sponsored by the 
Commission for Grade IV water pollution 
control collection system operators, and 

(i) have three years of actual experience in 
water pollution control collection 
system operations, or 
(ii) be a graduate of a two or four year 
college or universits and have taken, 
and passed, a minimum of six courses 
in a field directly related to the 
operation and maintenance of a 
collection system, e.g. civil, 
mechanical. or environmental 
engineering, and have two years of 
actual experience in the operation of a 
water pollution control collection 
system. 

HistoiyNote: Authority GS. 90A-39: 
Eff. April I. 1999. 

.0404 ELIGIBILITY REQUIREMENTS FOR LAND 
APPLICATION OF RESIDUALS OPERATORS 

An applicant for certification as a Land Application of 
Residuals Operator shall have satisfactorily completed a land 
application of residuals operator training school sponsored or 
co-sponsored by the Commission and: 

(1) have one year of actual experience in the land 
application of residuals; or 

(2) be a graduate of a two or four year college, or 
university, and have taken, and passed, a minimum 
of six courses in the basic sciences; or 

(3) hold a valid grade III or higher biological water 
pollution control system operator certification. 

Histmy Note: .Authority G.S. 90.4-39: 
Eff. .April I. 1999. 

.0405 ELIGIBILITY REQUIREMENTS FOR 
PHYSICAL/CHEMICAL WATER 
POLLUTION CONTROL SYSTEM 
OPERATORS 

(a) Eligibility for certification as a Ph\sical/Chemical Water 
Pollution Control System Operator shall be based on the 
following qualifications: 

(1) for the Grade I: 

have successfully completed a training school 
sponsored or co-sponsored by the Commission for 
Grade I Physical/Chemical Water Pollution Control 
System Operators. 

(2) for the Grade II: 

(a) possess a currently valid Grade I 



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1433 



APPROVED RULES 



Physical/Chemical Water Pollution Control System Operator 
certificate; and 

(b) have one year of actual experience at a Grade 
II Physical/Chemical Water Pollution Control 
System; and 

(c) have successfully completed a training school 
sponsored or co-sponsored by the 
Commission for Grade II Physical/Chemical 
Water Pollution Control System Operators. 

(b) Individuals working at physical/chemical water 
pollution control systems as of the effective date of this Rule 
and holding a valid Grade I, II, HI, IV wastewater treatment 
plant operator certification, may apply for a conditional 
physical/chemical certificate without examination once the 
requirements of this Paragraph (a) of this Rule are met. For 
operators applying for a conditional Grade II 
physical/chemical certification, a Grade I physical/chemical 
certificate is not required. This conditional certificate allows 
the bearer to act as the Operator in Responsible Charge (ORC) 
or Back-up Operator in Responsible Charge (Back-up ORC) of 
that system only. This conditional certificate must be renewed 
per Section .0700 of this Subchapter. 

Histo)y Note: Authority G.S. 90A-39; 
Eff. April 1. 1999. 

.0406 ELIGIBILITY REQUIREMENTS FOR SPRAY 
IRRIGATION WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Spray Irrigation Water 
Pollution Control System Operator shall have satisfactorily 
completed a spray irrigation water pollution control system 
operator training school sponsored or co-sponsored by the 
Commission and: 

( 1 ) have one year of actual experience in the operation 
of a spray irrigation water pollution control system; 
or 

(2) be a graduate of a two or four year college or 
university and have taken, and passed, a minimum 
of six courses in the basic sciences; or 

(3) be a private homeowner who intends to operate only 
their own domestic spray irrigation water pollution 
control system; or 

(4) hold a valid grade III or higher biological water 
pollution control system operator certification. 

Histon' Note: Authority G.S. 90A-39: 
Eff. April 1. 1999. 

.0407 ELIGIBILITY REQUIREMENTS FOR 
SUBSURFACE WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Subsurface Water 
Pollution Control System Operator shall have successfully 
completed a subsurface water pollution control system 
operator training school sponsored or co-sponsored by the 
Commission and: 

( I ) have one year of actual experience in the operation 



of a subsurface water pollution control system; or 

(2) be a graduate of a two or four year college or 
university and have taken, and passed, a minimum 
of six courses in the basic sciences; or 

(3) be a private homeowner who intends to operate only 
their own domestic subsurface water pollution 
control system; or 

(4) hold a valid grade III or higher biological water 
pollution control system operator certification. 

Histoiy Note: Authority G.S. 90.A-39; 
Eff. April I. 1999. 

.0409 ELIGIBILITY REQUIREMENTS FOR 
CONDITIONAL WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Conditional Water 
Pollution Control System Operator must successfully complete 
a training school sponsored or co-sponsored by the 
Commission for the operation of the water pollution control 

system. 

Histon'Note: Authohn'G.S. 90A-39; 
Efl .ipril l. 1999. 

SECTION .0500 - CERTIFICATION BY 
EXAMINATION 

.0505 EXAMINATION REVIEWS 

(a) Any applicant that fails to make a passing score on an 
examination may request to review the examination. All 
requests to review an examination must be submitted to the 
Commission in writing within 1 5 days of receiving notification 
of failing to make a passing score on an examination. Only 
those applicants who fail to make a passing score on an 
examination will be allowed to review their examination. 

(b) Applicants who submit a written request to review an 
examination shall be notified of a date. time, and location at 
which the applicant shall be given the opportunit>' to review 
their examination. This shall be the only opportunity the 
applicant will be allowed for reviewing their examination. 

(c) Under no circumstances shall an applicant be allowed to 
review their examination within 30 calendar days of an 
upcoming examination date. 

Histor}' Note: Authority G.S. 90.4-39: 
Eff. April 1. 1999. 

SECTION .0800 - DISCIPLINARY ACTIONS 

.0802 DISCIPLINARY ACTIONS 

(a) The Commission shall revoke or suspend the 
certification of an operator or issue a letter of reprimand to an 
operator in accordance with the provisions of G.S. 90A-41. 
150B-3 and this Rule. The Chairman is delegated authority, if 
he is the designee of the Secretary, to issue a summary 
suspension pursuant to G.S.150B-3(c). The remaining 
procedures in this Rule shall then be followed to determine if 



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APPROVED RULES 



such suspension shall be made permanent. 

(b) The Chairman of the Commission may issue notification 
of the intention to revoke or suspend or summary suspension 
of the certification of an operator or the intent to issue a letter 
of reprimand. 

(c) The Chairman shall convene an advisory committee to 
review the circumstances of the proposed disciplinao. 
action{s). Notification of the advisory committee meeting 
shall be sent by certified mail at least 15 calendar days prior to 
the date of the meeting, to the last known address of the 
operator. This notification shall contain the alleged facts or 
conduct upon which the proposed revocation or suspension of 
the certification or letter of reprimand is based. 

(d) The operator shall have an opportunity to submit a 
written response to the Chairman prior to the date of the 
advisory committee meeting. The operator shall also be given 
the opportunity to make an oral statement before the advisory 
committee. 

(e) The advisory committee shall include at least: 

{ 1 ) the Chairman of the Water Pollution Control System 
Operators Certification Commission; 

(2) the Vice Chairman of the Commission: 

(3) the member of the Commission who represents the 
type of system at which the operator is employed or 
another member of the Commission appointed by 
the Chairman of the Commission; and 

(4) a certified operator appointed by the Chairman. 
The members of the advisory committee shall offer guidance 
to the Commission Chairman in regards to the actions that 
should be taken against an operator 

(f) Within 10 working days of the conclusion of the 
advisory committee meeting, the Chairman shall issue a 
decision. If this decision is to issue a revocation or suspension 
or a letter of reprimand, the Chairman shall advise the operator 
of the effective date of the action and the facts or conduct 
upon which the action is based. The revocation or suspension 
of a certification or the letter of reprimand shall be delivered to 
the affected operator and the owner of the system(s) at which 
the operator works by certified mail, at the last known address 
for the operator and owner on file with the Commission, at 
least 20 calendar days prior to the effective date of the 
revocation or suspension or letter of reprimand. 

(g) The revocation or suspension or letter of reprimand 
becomes a final Commission action if the operator does not 
file a petition for a contested case hearing in the Office of 
Administrative Hearings as provided in the Administrative 
Procedure Act. G.S. 150B. 

(h) If an applicant is caught cheating on an examination by 
a proctor of the examination, the applicant shall be excused 
from the examination, the examination shall not be graded, the 
fee for the examination shall be forfeited by the applicant and 
any other certification(s) held by the applicant with the 
Commission shall be subject to revocation as set forth in G.S. 
90A-41 and in this Rule. Eligibility to sit for future 
examinations shall be determined as set forth in Rule .0502 of 
this Subchapter. 

(i) If the Commission determines, after the examination has 
been graded, that an applicant cheated on an examination and 



certification has been conveyed to the applicant, the 
certification obtained through the examination shall be 
revoked and any other certification(s) held by the applicant 
with the Commission shall be subject to revocation as set forth 
in G.S. 90A-41 and in this Rule. Eligibility to sit for future 
examinations shall be determined as set forth in Rule .0502 of 
this Subchapter. 

Histoiy Note: Authority G.S. 90A-40: 90A-41: I43B-300: 

150B-23: 

Eff. .April 1. 1999. 

SECTION .0900 - CONTRACT OPERATION OF 
WATER POLLUTION CONTROL SYSTEMS 

.0902 ANNUAL REPORT 

On or before April I of each year, each contract operator, or 
contract operations firm, must submit an annual report to the 
Commission that includes: 

( 1 ) the name, street address, mailing address, and 
business telephone number of the contract operator, 
or contract operations firm; and 

(2) the name, address, contact name, and telephone 
number of all water pollution control systems 
operated by the contract operator, or contract 
operations firm; and 

(3) the name, social security number, certificate type(s) 
and grade(s). and certification number(s) of all 
certified operators employed by the firm; and 

(4) the Operator in Responsible Charge (ORC) or Back- 
up Operator in Responsible Charge (Back-up ORC) 
designations for each operator employed by the firm 
and the name and permit number of each system for 
which each operator is the Operator in Responsible 
Charge (ORC) or Back-up Operator in Responsible 
Charge (Back-up ORC); and 

(5) the name, street address, mailing address, and 
telephone number of the certified laboratory(s) 
utilized by the contract operator, or contract 
operations firm. 

Histon- Note: Authority- G.S. 90A-45; 
Eff. April h 1999. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0300 - GAME FISH 

.0302 MANNER OF TAKING INLAND GAME 
FISHES 

(a) Except as provided in this Rule, it is unlawful for any 
person to take inland game fishes from any of the waters of 
North Carolina by any method other than with hook and line. 
Landing nets may be used to land fishes caught on hook and 



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1435 



APPROVED RULES 



line. Game fishes taken incidental to commercial fishing 
operations in joint fishing waters or coastal fishing waters 
shall be immediately returned to the water unharmed. Game 
fishes taken incidental to the use of licensed special devices 
for taking nongame fishes from inland fishing waters as 
authorized by 15A NCAC IOC .0407 shall be immediately 
returned to the water unharmed, except that a daily creel limit 
of American and hickory shad may be taken with dip nets and 
bow nets from March I through April 30 in those waters 
where such gear may be lawfully used. In the Pee Dee River 
below Blewett Falls dam shad may be taken with any special 
fishing device during the authorized season for that device. 

(b) In the inland waters of the Roanoke River upstream of 
U.S. 258 bridge, only a single barbless hook or a lure with a 
single barbless hook may be used from I April to 30 June. 



Barbless as used in this Rule, requires that the hook does not 
have a barb or the barb is bent down. 

Hislon'Note: Authority G.S. 113-134; 113-273; 113-292; 

113-302; 

Eft: Fehruaiy 1. 1976; 

Amended Eff. July 1. 1996; October 1. 1994; July 1, 1993; 

May 1. 1992; January 1. 1982; 

Temporary Amendment Eff. November 1. 1998; 

Amended EJL April L '999. 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph 
(b) of this Rule, the open seasons and creel and size limits are 
as indicated in the following table: 



GAME FISHES 


DAILY CREEL 
LIMITS 


MINIMUM 
SIZE LIMITS 


OPEN SEASON 


Mountain Trout: 
Wild Trout 
Waters 


• 4 


7 in. 


ALL YEAR 
(exc. 2) 


Hatchery Sup- 
ported Trout 
Waters and 
undesignated 
waters 


7 


None 


All year, except 
March 1 to 6:00 a.m 
on first Saturday 
in April 
(exc. 2) 


Muskellunge and 
Tiger Musky 


2 


30 in. 


ALL YEAR 


Chain Pickerel 
(Jack) 


None 


None 


ALL YEAR 


Walleye 


8 

(exes. 8&9) 


None 


ALL YEAR 
(exc. 8) 


Sauger 


8 


15 in. 


ALL YEAR 


Black Bass: 
Largemouth 


5 
(exc. 9) 


14 in. 
(exes. 3,7 & 10) 


ALL YEAR 
(exc. 17) 


Smallmouth 
and Spotted 


5 
(exc. 9) 


12 in. 
(exes. 3,7 & 10) 


ALL YEAR 


White Bass 


25 


None 


ALL YEAR 


Sea Trout (Spotted 
or Speckled) 


10 


12 in. 


ALL YEAR 


Flounder 


None 


13 in. 


ALL YEAR 


Red drum (channel 


5 


18 in. 


ALL YEAR 



bass, red fish, 
puppy drum) 



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APPROVED RULES 



Striped Bass 


8 aggregate 


16 in. 


ALL YEAR 


and their hybrids 


(exes. 1 & 5) 


(exes. 1,5& 11) 


(exes. 5, 13, & 15) 


(Morone Hybrids) 








Shad; (American 


1 aggregate 


None 


ALL YEAR 


and hictcory) 


(exc. 18) 




(exes. 18& 19) 


Kokanee Salmon 


7 


None 


ALL YEAR 


Pan fishes 


None 


None 


ALL YEAR 




(exes. 4. 12, & 16) 


(exc. 12) 


(exc. 4) 


NONGAME FISHES 


None 


None 


ALL YEAR 




(exc. 14) 


(exc. 14) 


(exes. 6) 



(b) Exceptions 

( 1 ) In the Dan River upstream from its confluence with 
Bannister River to the Brantly Steam Plant Dam, 
and in John H. Kerr. Gaston, and Roanoke Rapids 
Reservoirs, and Lake Norman, the creel limit on 
striped bass and Morone hybrids is four m the 
aggregate and the minimum size limit is 20 inches. 

(2) In designated public mountain trout waters the 
season for taking all species of fish is the same as 
the trout fishing season. There is no closed season 
on taking trout from Nantahala River and all 
tributaries (excluding impoundments) upstream from 
Nantahala Lake, and the impounded waters of power 
reservoirs and municipally-owned water supply 
reservoirs open to the public for tlshing. 

(3) Bass taken from Calderwood Reservoir may be 
retained without restriction as to size limit. 

(4) On Mattamuskeet Lake, special federal regulations 

apply. (8) 

(5) In the inland fishing waters of Cape Fear, Neuse, 
Pee-Dee, Pungo and Tar-Pamlico rivers and their 
tributaries and the Roanoke River and its tributaries, 
including the Cashie, Middle, and Eastmost rivers, 
extending upstream to the first impoundment, and (9) 
Lake Mattamuskeet, the daily creel limit for striped 

bass and their hybrids is three fish and the minimum (10) 

length limit is 18 inches. In the Roanoke River and 
its tributaries, including the Cashie, Middle, and 
Eastmost rivers-from April 1 to May 31 no fish 
between the lengths of 22 inches and 27 inches shall 
be retained. 

(6) See 15A NCAC IOC .0407 for open seasons for (11) 
taking nongame fishes by special devices. 

(7) The maximum combined number of black bass of all 
species that may be retained per day is five fish, no 
more than two of which may be smaller than the 
applicable minimum size limit. The minimum size (12) 
limit for all species of black bass is 14 inches, with 

no exception in Lake Luke Marion in Moore 
County, in Reedy Creek Park lakes in Mecklenburg 
County, in Lake Rim in Cumberland County, in 
Currituck Sound and tributaries north of Wright 
Memorial Bridge, in North River and tributaries in (13) 



Currituck and Camden Counties north of a line 
between Camden Point and the end of SR 1124, in 
High Rock Lake downstream of 1-85, in Badin Lake, 
in Falls Lake, in Lake Tillery, in Blewett Falls Lake, 
and in the New River and its tributaries in Onslow 
County. In and west of Madison, Buncombe, 
Henderson and Polk Counties and in designated 
public mountain trout waters the minimum size limit 
is 12 inches. In B. Everett Jordan Reservoir a 
minimum size limit of 16 inches, with no exception, 
applies to largemouth bass. In Falls of Neuse 
Reservoir, east of SR 1004, and Tuckertown Lake 
no black bass between the lengths of 12 inches and 
16 inches may be retained, and the minimum size 
limit for black bass is 16 inches, except that the 
daily creel may contain two black bass of less than 
12 inches in length. In W. Kerr Scott Reservoir 
there is no minimum size limit for spotted bass. 
A minimum size limit of 15 inches applies to 
walleye taken from Lake James and its tributaries, 
and the daily creel limit for walleye is four fish in 
Linville River upsfream from the NC 126 bridge 
above Lake James. 

The creel limit for black bass and walleye taken 
from Calderwood Reservoir is 10. 
The minimum size limit for all black bass, with no 
exception, is 18 inches in the following trophy bass 
lakes: 

(A) Cane Creek Lake in Union County; 

(B) Lake Thom-A-Lex in Davidson County; and 

(C) Sutton Lake in New Hanover County. 

In all impounded inland waters and their tributaries, 
except those waters described in Exceptions (1) and 
(5), the daily creel limit of striped bass and their 
hybrids may include not more than two fish of 
smaller size than the minimum size limit. 
In Lake Tillery, Falls Lake, High Rock Lake, Badin 
Lake, Tuckertown Lake, Lake Hyco. Lake Ramseur 
and Cane Creek Lake a daily creel limit of 20 fish 
and a minimum size limit of 8 inches apply to 
crappie. In Lake James, a daily creel limit of 20 fish 
applies to crappie. 
In designated inland fishing waters of Roanoke 



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1437 



APPROVED RULES 



Sound, Croatan Sound, Albemarle Sound. Chowan River. 
Currituck Sound, Alligator River, Scuppemong River, and 
their tributaries (excluding the Roanoke River and Cashie 
River and their tributaries), striped bass fishing season, size 
limits and creel limits shall be the same as those established by 
duly adopted rules or proclamations of 1999, July 1, 1998; 
July 1. 1995; March 25. 1978; November 1. 1977. 

(14) The daily creel and length limits for channel, white, 
and blue catfish in designated urban lakes are 
provided for in I5ANCAC IOC .0401(d). 

(15) The Executive Director may, by proclamation, 
suspend or extend the hook-and-line season for 
striped bass in the inland and joint waters of coastal 
rivers and their tributaries. It is unlawful to violate 
the provisions of any proclamation issued under this 
authority. 

(16) In the entire Lumber River from the Camp MacKall 
bridge (SR 1225, at the point where Richmond. 
Moore, Scotland, and Hoke counties join) to the 
South Carolina state line and in all public fishing 
waters east of 1-95. except Tar River Reservoir in 
Nash County, the daily creel limit for sunfish is 30 
in aggregate, no more than 12 of which shall be 
redbreast sunfish. 

(17) In Sutton Lake, no largemouth bass may be retained 
from December 1 through March 3 1 . 

(18) In the Pee Dee River downstream from the Blewett 
Falls dam. shad may be taken with special fishing 
devices without restriction to creel limits as 
provided for in 15A NCAC IOC .0404 (b) during 
the permitted special fishing device seasons 
specified in 15A NCAC IOC .0407. American and 
hickory shad taken under this Subparagraph may be 
sold as authorized under subsection 1 OC .040 1 . 

(19) The season for taking American and hickory shad 
with dip nets and bow nets is March 1 through April 
30, except in Pee Dee River downstream from 
Blewett Falls dam where the season prescribed in 
15ANCAC IOC .0407 (4) and (75) is in effect. 

History Note: Filed as a Temporary Attjendment Eff. 

December 1 . 1994 for a period of 180 days or until the 

permanent rule becomes effective, whichever is sooner: 

Filed as a Temporary Amendment Eff. May 1. 1991. for a 

period of 1 80 day's to expire on November 1. 1991 : 

Filed as a Temporary .Amendment Eff. May 22. 1990. for a 

period of 168 days to expire on November 1. 1990: 

Filed as a Temporary Amendment Eff. May 10. 1990. for a 

period of 180 days to expire on November 1. 1990: 

Authority G.S. 113-134: 113-292: 113-304: 113-305: 

Eff Febniaiy 1. 19-6: 

Amended Eff July I. 1998: July 1. 199'': July 1. 1996: July 1. 

1995: July 1. 1994: July 1, 1993: October 1. 1992: 

Temporaty Amendment Eff. November 1. 1998: 

Amended Eff .April 1 , 1999. 

SECTION .0400 - NONGAME FISH 



.0404 SPECIAL DEVICE FISHING 

(a) Bow and Arrow. The use of bow [as defined in 15A 
NCAC lOB .01 16(a)] and arrow as a licensed special device is 
authorized for taking nongame fishes at any time from all 
inland fishing waters other than impounded waters located on 
the Sandhills Game Land and designated public mountain trout 
waters. Unless specifically prohibited, bow and arrow may be 
used in joint fishing waters. It is unlawful to take fish with 
crossbow and arrow in any inland fishing waters. 

(b) Nets. Manuall>- operated nets, including seines and 
bow. cast. dip. gill, drift and iyke nets may be used under the 
special device fishing license. 

( 1 ) No fixed gill net or other stationary net which may 
be authorized as a special fishing device may be 
more than 100 yards in length, nor shall any such net 
be placed within 50 yards of any other fixed net. 
Fixed nets must be set so that they run parallel to the 
nearest shoreline, except in the Neuse, Trent, 
Northeast Cape Fear, Cape Fear, and Black Rivers 
and their tributaries. No anchored or fixed gill net 
or drift net shall be used unless such net is marked 
for the protection of boat operators. A net shall be 
deemed so marked when there is attached to it at 
each end two separate yellow buoys which shall be 
of solid foam or other solid buoyant material no less 
than five inches in its smallest dimensions. The 
owner shall always be identified on a buoy on each 
end either by using engraved buoys or by attaching 
engraved metal or plastic tags to the buoys. Such 
identification shall include one of the following: 
owner's N.C. motor boat registration number, or 
owner's U.S. vessel documentation name, or owner's 
last name and initials. 

(2) It is unlawful to attach gill nets to any wire. rope, or 
similar device extended across any navigable 
watercourse. 

(3) All fixed or drift gill nets must be attended when 
fished in the designated inland waters of Beaufort. 
Bertie, Bladen. Brunswick. Camden. Carteret. 
Chowan. Columbus. Craven. Cumberland, 
Currituck, Dare, Duplin, Gates, Greene. Harnett. 
Hertford. Hoke, Hyde, Jones, Lenoir. Martin. New- 
Hanover, Onslow. Pamlico. Pasquotank. Pender, 
Perquimans. Pitt. Robeson. Sampson. Scotland. 
Tvrrell and Washington counties. Attended as used 
in this Rule, requires that fishermen be within 100 
yards of all sets of nets at all times. 

(c) Traps. Baskets and traps, including automobile tires. 
may be used under the special device fishing license. Such 
devices when set and left unattended shall be affixed with a 
card or tag furnished by the license holder and upon which his 
name and address shall be legibly and indelibh inscribed. No 
fish trap may exceed 60 inches in length or 30 inches in depth 
or width. No lead nets, w ing nets, or other device designed to 
guide or herd fish may be attached to the trap or used or set 
within 25 feet of the trap. 

(d) Spears. Manually operated gigs or under-water spear or 
harpoon guns may be used under the special fishing device 



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APPROVED RULES 



license in the inland waters having a season for their use 
specified in Rule .0407 of this Section. 

(e) Crab pots. It is unlawful to use crab pots in inland 
fishing waters, except by persons owning property adjacent to 
the inland fishing waters of coastal rivers and their tributaries 
who are permitted to set two crab pots to be attached to their 
property and not subject to special device license 
requirements. 

(0 Eel pots. It is unlawful to use pots with mesh sizes 
smaller than one inch by one-half inch unless such pots 
contain an escape panel that is at least four inches square with 
a mesh size of one inch by one-half inch located in the outside 
panel of the upper chamber of rectangular pots and in the rear 
portion of cylindrical pots, except that not more than two eel 
pots per fishing license with a mesh of any size may be used to 
take eels for bait. Each pot must be marked by attaching a 
floating buoy which shall be of solid foam or other solid 
buoyant material and no less than five inches in diameter and 
no less than five inches in length. Buoys may be of any color 
except yellow. The owner shall always be identified on the 
attached buoy by using engraved buoys or by engraved metal 
or plastic tags attached to the buoy. Such identification shall 
include one of the following; 

(1) owner's N.C. motorboat registration number; or 

(2) owner's U.S. vessel documentation name; or 

(3) owner's last name and initials. 

Histon Note: Authonn- G.S. 113-134: 113-272.2: 113-276: 

113-292: 

Eft: February 1. 1976: 

Amended Eff. July. L 1299: July 1. 1996: December 1. 1995: 

July 1. 1995: July 1. 1994: July 1. 1993. 

.0405 POSSESSION OF LICENSES 

Except as indicated in this Rule, everv' individual 
participating in the taking of fish through the use of any 
special device must have the special device fishing license 
issued to him. personally, in his possession or readily available 
for inspection. A bow net or a dip net may be used by an 
individual other than the licensee with the licensee's 
permission, but such user must have the license in his 
possession or readily available for inspection. When using 
drag seines authorized for taking nongame fishes at beaches on 
inland fishing waters where there are migratory saltwater 
fishes— (herring or mullet), only the principal owner and 
operator is required to be licensed. 

Histon- Note: Authority G.S. 113-134: 113-275: 113-276: 

113-276.1: 113-292: 

Eff. Fehruaiy 1 . 1976: 

Temporaiy Amendment Eff. November 1, 1998: 

Amended Eff. April 1 , 1999. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1200 - GRADE A MILK 



SANITATION 

.1202 MODIFICATIONS OF THE ADOPTION BY 
REFERENCE 

(a) The provisions of this Rule make amendments, 
additions, and deletions to the Milk Ordinance adopted by 
reference in Rule .1201 of this Section. 

(b) In the Milk Ordinance, several blank spaces are 
identified by three periods ("..."). The following provisions 
identify the location of the blank spaces in the Milk Ordinance 
and provide the words to be inserted in the blanks; 

( 1 ) On page 3 1 , the second paragraph, the word "State" 
is inserted in the first blank, and the words "North 
Carolina" are inserted in the second blank. 

(2) On page 36. Section 1 . Item X. the words "delegated 
representative" are inserted in the first blank, the 
words "Division of Environmental Health" are 
inserted in the second blank, and the rest of the 
sentence is deleted. 

(3) On page 37. Section 2. the first paragraph, the word 
"State" is inserted in the first blank, and the words 
"North Carolina" are inserted in the second blank. 

(4) On page 42. Section 5. the first paragraph, the words 
"North Carolina" are inserted. 

(5) On page 46, Section 6. second column, the fourth 
paragraph, the word "current" is inserted in the first 
blank and the word "current" is inserted in the 
second blank. 

(6) On page 76. Section 7. Item 6p. the first paragraph, 
the word "State" is inserted in the first blank, and 
the words "North Carolina" are inserted in the 
second blank. 

(7) On page 77. Section 7. Item 6p. Administrative 
Procedures, the word "State" is inserted in the first 
blank, and the words "North Carolina" are inserted 
in the second blank. 

(8) On page 122. Section 11. the first paragraph, the 
word "State" is inserted in the first blank, and the 
words "North Carolina" are inserted in the second 
and third blanks. 

(c) The Milk Ordinance is amended by: 

( 1 ) Deleting the words "or its jurisdiction" wherever the 
words appear in the Milk Ordinance. 

(2) Deleting the words "twehe months from the date 
this ordinance is adopted" as they appear on page 
121. Section 9 of the Milk Ordinance, and substitute 
the words "January 1. 1985". 

(3) Adding the following paragraph to the end of 
Section 9 of the Milk Ordinance; "No restaurant, 
soda fountain, other food service establishment, 
retail outlet, milk distribution plant, or grocer> store 
shall serve, sell or offer for sale any Grade "A" milk 
or milk products which have not been properly 
handled; which are in soiled cartons or containers; 
which have not been stored in clean refrigerated 
storage rooms or display cases; and which have not 
been maintained at a temperature of 45 degrees F. (7 
degrees C.) or less". 



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APPROVED RULES 



(4) Deleting the words "every 3 years" as they appear 
on page 61 A, Section 7, Item 8r, Administrative 
Procedure No. 7. and substituting the words "once 
every year". 

(5) Deleting the words "every 3 years" as they appear 
on page 199, Appendix G, paragraph entitled 
"frequency", line No. 6, and by substituting the 
words "once every year". 

(6) Deleting Appendi.x C and all of Appendix D except 
Part V and VI. 

(7) Deleting the last sentence of Administrative 
Procedure No. 1 in Item 7r, Section 7, page 60A and 
by substituting the sentence "All sewage and other 
liquid wastes shall be disposed of in a public sewer 
system or, in the absence of a public sewer system, 
by an approved, properly operating sanitary sewage 
system". 

(8) Deleting the words "Appendix D, p. 155," as the\' 
appear on page 61 A, Section 7, Item 8r, 
Administrative Procedure No. 1, by substituting the 
words "the Commission for Health Services' Rules 
governing water supplies", and by adding the 
following sentence at the end of Administrative 
Procedure No. 1 : "Copies of 1 5 A NC AC 1 8 A . 1 700 
and 15A NCAC 18C may be obtained from the 
Division." 

(9) Deleting the words "(see Appendix D, p. 155)" as 
they appear on page 6 1 A, Section 7, Item 8r, 
Administrative Procedure No. 6. 

(10) Deleting the words "(see Appendix D)" as the\ 
appear on page 78, Section 7, Item 7p. 
Administrative Procedure No. 6. 

(11) Deleting the words "Appendix D. p. 155," as they 
appear on page 77, Section 7, Item 7p. 
Administrative Procedure No. 2, and by substituting 
the words "The Commission for Health Services' 
Rules governing water supplies". 

(12) Deleting Section 3 and the accompanying 
Administrative Procedures, and by deleting Sections 
1 5 through 18. 

(13) Deleting the seventh paragraph of Section 5 on page 
42, which begins with the words "should the 
violation" and by substituting the following 
paragraph: "Should the violation of any requirement 
set forth in Section 7, or in the case of a milk hauler 
also Section 6, be found to exist on an inspection, 
the posting of the inspection report shall serve as 
notice of intent to suspend the permit if the violation 
noted is not in compliance at the time of the next 
inspection. The finding of violation may be 
appealed by requesting a hearing within the time 
specified in the notice. If the violation is not in 
compliance at the time of the next inspection and a 
hearing is not requested within the time period 
stated in this Paragraph, the permit will be 
suspended". 

(14) Deleting the first sentence following the words 
"ENFORCEMENT PROCEDURE." " which are 



found in the Administrative Procedures of Section 5 
on page 44. 

Hisloiy Note: Authorit\' G.S. 130A-275: 

Ejf. January 1. 1985: 

Amended Eff. January /^ 1999: September 1. 1991 : December 

1. 1990: July 1. 1985. 

SECTION .2800 - SANITATION OF CHILD 
DAY CARE FACILITIES 

.2804 FOOD SUPPLIES 

(a) Food shall be in good condition, free from spoilage, 
filth, or other contamination and shall be safe for human 
consumption. Potentially hazardous foods shall only be 
obtained from sources that are permitted or inspected by a 
health department or the North Carolina Department of 
Agriculture. The use of food packaged in hermetically sealed 
containers that was not prepared in a commercial food 
processing establishment is prohibited. 

(b) Milk products that are used shall be Grade "A" 
pasteurized fluid milk and fluid milk products or evaporated 
milk. The term "milk products" means those products as 
defined in I5ANCAC 18A .1200. Copies of 15A NCAC 18A 
.1200 may be obtained from the Environmental Health 
Services Section, Division of Environmental Health, DENR, 
RO. Box 29534, Raleigh, North Carolina 27626-0534. Unless 
prescribed by a physician, dry milk and dry milk products may 
be used only for cooking purposes, including cooked pudding 
desserts and flavored hot beverages. 

(c) Fresh and frozen shucked shellfish (oysters, clams, or 
mussels) shall be packed in nonretumable packages identified 
with the name and address of the original shell stock 
processor, shucker - packer, or repacker. and the interstate 
certification number issued according to law. Shell stock and 
shucked shellfish shall be kept in the container in which they 
were received until they are used. Each container of 
unshucked shell stock (oysters, clams, or mussels) shall be 
identified by an attached tag that states the name and address 
of the original shell stock processor, the kind and quantity of 
shell stock, and an interstate certification number issued by the 
State or foreign shellfish control agenc\'. After each container 
of shellstock has been emptied, the management shall remove 
the stub of the tag and retain it for a period of at least 90 days. 

(d) Raw eggs or products containing raw eggs shall not be 
consumed, including raw cookie dough, cake batter, brownie 
mix, milkshakes, ice cream and other food products. A 
pasteurized egg product may be used as a substitute for raw 
eggs. 

(e) Formula, mother's milk, and other bottled beverages 
sent from home shall be fully prepared, dated, and identified 
for the appropriate child at the child's home. All formula, 
mother's milk, and other bottled beverages shall be returned to 
the child's home or discarded at the end of each day. Formula 
provided by the child care center shall be commercialK 
pre-packaged, ready-to-feed, fully prepared, and packaged in 
single-use containers. However, formula that does not meet 
these requirements may be provided by the child care center as 



1440 



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13:17 



APPROVED RULES 



prescribed by the child's physician or instructed by parent or 
guardian in writing. Bottles and other drinking utensils 
provided by the child care center shall be sanitized in 
accordance with this Section. Formula and other beverages 
which require refrigeration, baby food after opening, and 
mother's milk shall be identified for the appropriate child and 
shall be refrigerated at 45 °F (7°C) or below. Commercially 
prepared baby foods shall be served from a serving dish rather 
than the food jar. Upon opening jars of baby food shall be 
covered, dated with the date of opening, refrigerated, and used 
within 48 hours. However, baby food may be served directly 
from the jar to one child if unused portions of the food are 
discarded after each feeding. 

(f) Child care centers receiving prepared, ready-to-eat meals 
from outside sources shall use only catered meals obtained 
from a food handling establishment permitted or inspected by a 
health department. During transportation, food shall meet the 
requirements of these Rules relating to food protection and 
storage. 

(g) All bag lunches containing potentially hazardous foods 
shall be refrigerated in accordance with this Section. 

Histoiy Note: Authority G.S. 110-91; 
Eff.Julyl, 1991: 

Amended Eff'. Februaiy I. 1995: Jamiaiy I. 1992; 
Temporary Amendment Eff. April 15. 1998: 
Amended Efj: April A 1999. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINISTRATION 

SECTION .0600 - SUBSTITUTE FORMS 

.0601 APPROVAL REQUIRED FOR SUBSTITUTE 
FORMS 

(a) The Department prepares forms for taxpayers to use in 
reporting and paying taxes. The forms are designed to be able 
to be processed accurately and efficiently on the Department's 
processing equipment. A company that wants to reproduce a 
form of the Department for use by a taxpayer must meet the 
requirements of the Department before it does so. These 
requirements include obtaining from the Department a vendor 
number and the technical specifications for the form, 
submitting to the Department a draft of the substitute form for 
approval, and receiving a letter from the Department stating 
that the draft substitute form submitted complies with the 
Department's requirements. The person at the Department to 
contact to obtain approval of a substitute form is the Director 
of the Division that administers the tax. 

(b) Rejection —The Department may reject any form that is 
submitted and is not a form prepared by the Department or 
approved for use by the Department. 



Histoiy Note: Authority 105-252: 105-262; 
Eff. .April 1. 1999. 

CHAPTER 3 - INDIVIDUAL INCOME: INHERITANCE 
AND GIFT TAX DIVISION 

SUBCHAPTER 3B - INHERITANCE TAX 

SECTION .0100 - GENERAL INFORMATION 

.0102 INHERITANCE AND ESTATE TAX 

RETURN: FORM A-lOO 
.0103 INHERITANCE AND ESTATE TAX 

CERTIFICATE: FORM A-102 
.0104 INHERITANCE AND ESTATE TAX 

WAIVER: FORM A-105 

Histoiy Note: Authority G.S. 105-25; 105-262; 
Eff. February I, 1976; 
.Amended Eff. June 1, 1993; 
Repealed Eff: Januan 1 . 1999. 

.0106 LOCK BOX RELEASE: FORM A-1 09 

History Note: .Authority' G.S. 105-23; 105-24; 105-262; 
Eff'. February 1. 1976; 
Repealed Eff Januan 1, 1999. 

.0108 LIFE INSURANCE: ACCIDENTAL DEATH 

.0109 LIFE INSURANCE: MORTGAGE 

CANCELLATION 

.0110 DEDUCTIONS: MORTGAGE NOTE 

.0111 VALUATION: TREASURY BONDS 

.0112 VALUATION: REAL PROPERTY 

.0113 FEDERAL ESTATE TAX 

Histoiy Note: .Authority G.S. 105-9; 105-9.1; 105-13: 

105-29; 105-262; 

Eff. Februaiy 1. 1976; 

Amended Eff June 1. 1993; October 30. 1977: 

Repealed Eff. January 1. 1999. 

.0114 MORTGAGES AGAINST REAL PROPERTY: 
SCHEDULE Z 

Histoiy Note: A utimrity G. S 1 05-2 1 : 1 05-262; 

Eff May 1. 1994; 

Repealed Eff. January I. 1999. 

CHAPTER 5 - CORPORATE INCOME AND 
FRANCHISE TAX DIVISION 

SUBCHAPTER 5C - CORPORATE INCOME 
TAX 

SECTION .2000 - EXTENSION OF TIME 
FOR FILING RETURN 



13:17 



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1441 



APPROVED RULES 



.2004 EXTENSION OF FILING DATE 

A corporation will receive a seven-month extension of time 
to file its corporate franchise and income tax return if the 
corporation timely files Form CD-419, Application for 
Extension of Time To File Corporate Franchise and Income 
Tax Return. Payment of tax is not required to obtain an 
extension; however, interest accrues at the rate set under G.S. 
1 05-24 1 . 1 ( i ) on the amount not paid by the original due date of 
the corporate franchise and income tax return and the failure to 
pay penalty in G.S. 105-236(4) applies to the amount not paid 
by the original due date of the return. 

History! Note: Authority G.S. 105-262: 105-263: 

Eff..4pril I. 1999: 

Amended Eff. July 1 . 1999: January I 1994. 

CHAPTER 6 - INDIVIDUAL INCOME 
TAX DIVISION 

SUBCHAPTER 6B - INDIVIDUAL INCOME 
TAX 

SECTION .3200 - PENALTIES: INDIVIDUAL 
INCOME TAX 

.3207 FAILURE TO FILE INFORMATIONAL 
RETURNS 

History Note: Authority G.S. 105-236: 105-262: 
Eff. April 1, 1978: 
Amended Eff. June 1 . 1993: 
Repealed Eff. Janua)y 1, 1999. 

SECTION .3700 - ESTATES AND TRUSTS 



(2) 
(3) 
(4) 
(5) 



.3719 



FAILURE TO FILE PENALTIES 



History Note: Authority G.S. 105-236: 105-262: 
Eff. Fehruaiy 1. 1976: 
Amended Eff. June 1. 1993: 
Repealed Eff Januan- 1 . 1999. 

CHAPTER 7 - SALES AND USE TAX 

SUBCHAPTER 7B - STATE SALES AND USE TAX 

SECTION .1700 - SALES TO OR BY THE 

STATE: COUNTIES: CITIES: AND OTHER 

POLITICAL SUBDIVISIONS 

.1704 GOVERNMENTAL ENTITIES NOT 
ELIGIBLE FOR REFUNDS 

G.S. 105-164. 14(c) lists the governmental entities that are 
eligible for refunds of sales and use taxes. A governmental 
entity that is not listed in that subsection is not eligible for a 
refund. The governmental entities that are not eligible for a 
refund include the following: 

( 1 ) An alcoholic beveraae control board. 



A community college established under G.S. 1 15D. 

A drainage district. 

A housing authority. 

The North Carolina Civil Air Patrol, a State agency 

created by G.S. 1438-490. 



Histor\> Note: Authority' G.S. 105-164.6: 105-164.14; 

105-262: 

Eff. February 1 , 1976: 

.4mended Eff April L 1999: October 1. 1993: May 1. 1990; 

July 5. 1980. 

SECTION .1800 - HOSPITALS AND SANITARIUMS 

.1801 SALES TO AND BY HOSPITALS AND 
SIMILAR INSTITUTIONS 

(a) General. — Hospitals, sanitariums, nursing homes, and 
rest homes are primarily engaged in rendering services and are 
considered the users or consumers of all tangible personal 
property they purchase for use in connection with these 
institutions. These institutions are liable for payment of sales 
or use tax on their purchases of tangible personal property 
except as explained in this Rule. 

(b) Drugs and Medicines. - Hospitals, sanitariums, nursing 
homes, and rest homes are considered the users or consumers 
of drugs or medicines they administer to patients. Purchases 
of drugs or medicines, other than insulin, by these institutions 
for use are subject to the four percent state tax and any 
applicable local sales or use tax. Sales of insulin are exempt 
from sales or use taxes whether or not sold on prescription. 

If one of these institutions operates a pharmacy from which 
it makes across the counter sales of medicines and drugs and 
from which it purchases all medicines and drugs used by it in 
treating patients, then the institution may purchase drugs or 
medicines from a supplier without payment of tax if the 
institution is registered with the Department of Revenue for 
sales or use tax purposes and has furnished the supplier with a 
properly executed Certificate of Resale, Form E-590. By 
executing the certificate of resale, the institution assumes the 
liability for payment of and must pay directly to the department 
all sales or use taxes due on drugs and medicines used by the 
institution in caring for its patients. Sales of drugs and 
medicines by the pharmacy on prescription of physicians and 
dentists are exempt from tax. Sales of drugs and medicines, 
other than insulin, by the pharmacy without written 
prescriptions of physicians or dentists are subject to the four 
percent state tax and any applicable local sales or use tax. 

(c) Food. " Purchases of food by hospitals, sanitariums, 
nursing homes, or rest homes for use in furnishing meals to 
patients are exempt from State tax, but not the two °o local tax. 
if the food could be purchased under the Food Stamp Program. 
If food purchased by an institution could not be purchased 
under that Program, the food is subject to both State and local 
sales or use tax. If, in addition to furnishing meals to patients, 
one of these institutions operates a cafeteria from which it 
makes sales of prepared meals or food to guests, visitors, 
employees, staff, or other persons, the institution must register 
with the Department of Revenue and collect and remit the tax 



1442 



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March I, J 999 



13:17 



APPROVED RULES 



on its sales. If the food purchased by the institution for use in 
furnishing meals to patients cannot be distinguished from the 
food purchased for resale through the cafeteria, the institution 
may purchase all the food under a certificate of resale. An 
institution that does this assumes liability for payment of sales 
or use tax on food used in furnishing meals to its patients and 
on sales of meals by the cafeteria. 

(d) Meals to Students. - Meals and food products sold by a 
hospital operated by a State or private educational institution 
to student nurses are exempt from tax in accordance with G.S. 
105-164.13(27). 

(e) Purchases for Consumption. ~ Except as provided by 
Paragraphs (b) and (c) of this Rule, Certificates of Resale, 
Form E-590, may not be used by hospitals, sanitariums, 
nursing homes, or rest homes when making taxable purchases 
of tangible personal property for use or consumption. The tax 
due on taxable purchases from North Carolina suppliers or 
out-of-state suppliers who charge North Carolina sales or use 
tax must be paid to the suppliers. An institution that makes 
taxable purchases fi"om an out-of-state supplier who does not 
collect and remit North Carolina sales or use tax must register 
with the department and remit monthly the tax due on the 
purchases. 

History Note Author it}' G.S. 105-164.4: 105-164.6: 

105-262: 105-467: 

Eff. February 1 . 1976: 

Amended Eff. May L 1999: August 1. 1998: October 1. 1993: 

October 1.' 1991: July 1. 1989. 

SECTION .2200 - FOOD AND FOOD PRODUCTS 
FOR HUMAN CONSUMPTION 

.2201 FOOD AND FOOD PRODUCTS 

(a) General. — All retail sales of food or food products are 
subject to applicable State and local sales or use tax unless a 
statute exempts the sales from tax. Food that can be purchased 
under the Food Stamp Program is exempt from State tax, but 
not the two percent local tax. 

(b) Exempt Cafeteria Food. - The schools, institutions, and 
organizations whose sales of food and meals are exempt under 
G.S. 105-164.13(26), (26a), or (27) are not required to register 
with the Department. Therefore, unless one of these entities is 
otherwise required to register with the Department by reason 
of making other sales or purchases subject to the sales or use 
tax, it cannot furnish a Certificate of Resale. Form E-590, to its 
suppliers. When making purchases of food to be sold, one of 
these entities that is not registered must give the supplier 
information to the effect that the food purchased is to be sold 
by the entity's school cafeteria or dining room, and the 
supplier must enter this information on its records and on the 
sales invoices. Otherwise, the transactions may be subject to 
the tax. Registered schools, institutions, and organizations 
must furnish a properly executed Certificate of Resale, Form 
E-590, to a supplier to purchase food without paying tax on the 
purchase. 

Histoi-v Note: Authorit\- G.S. 1 05- 1 64.4: 105-164.6: 



105-164.13: 105-262: 105-467: 

Eff. February 1. 1976: 

Amended Eff May L 1999: August 1. 1998: October 1. 1993: 

October 1. 1991: February 1. 1986: May 11. 1979. 

.2212 SEAFOODS 

A person who purchases fish or other seafood and sells it at 
retail is liable for the applicable State and local sales or use tax 
due on the sale. Seafood that can be purchased under the Food 
Stamp Program is exempt from State tax, but not the two 
percent local tax. 

HistoiyNote: Authority G.S. 105-164.4; 105-164.13: 

105-262: 105-467: 

Eff. February 1. 1976: 

.Amended Eff. May L 1999: .August 1, 1998: October 1, 1993: 

October 1, 1991 

SECTION .3200 - TELECOMMUNICATIONS 
AND TELEGRAPH COMPANIES 

.3201 TELECOMMUNICATIONS AND 
TELEGRAPH COMPANIES 

(a) Sales to telecommunications and telegraph companies 
regularly engaged in providing telephone and telegraphic 
services to subscribers on a commercial basis of central office 
equipment, switchboard and private branch exchange 
equipment and prewritten computer programs used in 
providing telecommunications service to subscribers are 
subject to the one percent sales or use tax with a maximum tax 
of eighty dollars ($80.00) per article. For the purpose of 
determining the items that may be properly included in the 
terms central office equipment, switchboard equipment and 
private branch exchange equipment, reference is made to 
Accounts 2124, 2211, 2212, 2215, 2220, 2231, 2232, 2311, 
and 2341 of Title 47-Telecommunication Chapter 1, Part 32, 
Uniform System of Accounts For Telecommunications 
Companies, of the Federal Communications Commission's 
rules and regulations as revised to January 1, 1988, which are 
hereby incorporated by reference. This Rule has no 
application to future changes in the Federal Communications 
Commission's rules and regulations until such changes are 
reviewed by the Secretary of Revenue to determine the 
application of tax to the tangible personal property affected by 
such changes. Copies of these Rules and Regulations may be 
obtained from the Secretary's Office, Room 202, Federal 
Communications Commission, 1919 M Street, N.W., 
Washington, D.C. 20554, at a fee often cents ($0.10) per 
page. 

(b) Accounts 2211, 2212, 2215, 2220, 2231 and 2232; 
Central Office Equipment. These accounts include 
switchboards and other equipment, instruments and apparatus 
necessary to the functions of central offices. Sales to and 
purchases by the above-referred to telecommunications and 
telegraph companies of the items included in Central Office 
Equipment Accounts, are subject to the one percent sales or 
use tax with a maximum tax of eighty dollars ($80.00) per 
article, irrespective of whether the items are classified in the 



13:17 



NORTH CAROLINA REGISTER 



March 7. 1999 



1443 



APPROVED RULES 



Uniform System of Accounts as capital expenditures or as 
maintenance expense. Examples of items contained in Central 
Office Equipment Accounts 22 1 1 , 22 1 2, 22 1 5, 2220, 223 1 and 
2232 which are taxable at the four percent state and any 
applicable local rate are: 

( 1 ) aisle-lighting equipment attached to buildings; 

(2) minor building alterations when tangible personal 
property not properly termed central office 
equipment is affixed or attached to or in any manner 
becomes a part of a building or structure; 

(3) cable, other than that connecting central office units 
to each other or to distributing frames; 

(4) covers for transmission power apparatus: 

(5) desks and tables unless equipped with central office 
equipment when purchased; 

(6) foundations for engines and other equipment when 
part of building; 

(7) loading coils used outside central office, loud 
speaker equipment, operators' chairs; 

(8) platforms, rolling ladders, tarpaulins, ticket holders, 
toll ticket carriers; 

(9) water stills for battery service; 

(10) tools and portable testing equipment regardless of 
where used. 

(c) Account 2124 - General Purpose Computers. This 
account includes any computer system used to test, diagnose, 
maintain and control more than one type of 
telecommunications plant in addition to computers which are 
used to perform general administrative information processing 
activities. That equipment which is used for the testing, 
diagnosis, maintenance, or control of more than one type of 
central office equipment is taxable at the one percent rate 
subject to the eighty dollar ($80.00) maximum tax per article, 
whether classified under the Uniform System of Accounts as 
capital expenditures or as maintenance expense; however, all 
other equipment in this account is subject to the four percent 
state and any applicable local sales or use tax. 

(d) Account 2311; Station Apparatus. This account 
includes private branch exchange equipment in addition to 
station apparatus. Equipment which is properly included in the 
temi private branch exchange equipment is taxable at the one 
percent rate subject to the eight) dollar ($80.00) maximum tax 
per article, whether classified by the Uniform System of 
Accounts as capital expenditures or as maintenance expense; 
however, all other equipment in this account is subject to the 
four percent state and any applicable local sales or use tax. 
Examples of items contained in Account 23 1 1 which are 
taxable at the four percent state and applicable local rate are 
desk sets, hand sets, wall sets, mobile telephone equipment, 
backboards, battery boxes, booths, coil collectors, station 
wiring, protectors, arresters, ground rods, clamps, wire and 
similar associated equipment. 

(e) Account 2341; Large Private Branch Exchange. This 
account contains equipment and apparatus necessary to the 
operation of the above named exchanges. The equipment and 
apparatus contained in this account which are properly 
included in the term private branch exchange equipment are 
subject to the one percent sales or use tax with a maximum tax 



of eighty dollars ($80.00) per article, whether classified under 
the Uniform System of Accounts as capital expenditures or as 
maintenance expense, but does not include any tangible 
personal property which is station apparatus. Examples of 
items included in Account 2341 which are taxable at the four 
percent state and applicable local rate are operators' chairs and 
equipment. 

(f) Telecommunications Services. - G.S. I05-I64.4(a)(4a) 
and (4c) impose State taxes on certain telecommunications 
services. These taxes must be separately stated on each 
customer's bill. The taxes are payable as specified in G.S. 
105-164.16(c). 

All charges for tangible personal property and services 
provided in the delivery of telecommunications services to the 
purchaser are a part of the sale of services upon which the tax 
is due, notwithstanding that some charges may be billed 
separately to the customer from the time or flat rate charges. 
Taxable charges include charges for reconnecting service to a 
customer after service has been terminated for nonpayment 
and charges for disconnecting service. Taxable charges do not 
include any of the following: 

( 1 ) Late payment charges. 

(2) Return check charges on customers' checks returned 
b> a bank because of insufficient funds. 

(3) Charges for telecommunications services sold 
directly to the United States Government or an 
agency of the United States Government. A 
company that sells to the federal government or one 
of its agencies must obtain a purchase requisition 
from the federal government or the agency when it 
begins making the sales and must keep the 
requisition in its records. 

(4) Effective January 1, 2000, charges for coin-operated 
pay telephone service exempt from tax under G.S. 
105-164.13. 

(g) Property Sale or Lease. — A telecommunications 
company that sells or leases equipment or other tangible 
personal property is liable for collecting and remitting the four 
percent State and an> applicable local sales or use tax on the 
receipts from the sales or leases. Tax due on the sale or lease 
of property by a telecommunications company is pa\able in the 
same manner as tax due on the sale or lease of property by any 
other retailer; it is due monthly, quarterK, or semimonthly in 
accordance with G.S. 1 05- 1 64. 1 6(b). 

History Note: Authority G.S. 1 05- 1 64.4: 1 05- 1 64.6: 

105-262: 

Eff. February I. 1976: 

Amended Eff. April L 1999: October 1. 1993: October 1. 

1991: October I, 1990: July I. 1989. 

CHAPTER 9 - MOTOR FUELS 
TAX DIVISION 

SUBCHAPTER 91 - HIGHWAY FUEL USE TAX 

SECTION .0300 - CREDITS AND REFUNDS 



1444 



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March 1, 1999 



13:17 



APPROVED RULES 



.0301 



CARRY FORWARD CREDITS 



HistofyNote: Authority G.S. 105-262: 105-449.39: 
Eff. January 1 . 1983: 
Amended Eff. January 1 . 1994: 
Repealed Eft: January- 1 , 1999. 



TITLE 19A - DEPARTMENT OF TRANSPORTATION 

CHAPTER 6 - TRANSIT, RAIL, AND AVIATION 

SUBCHAPTER 6B - PUBLIC TRANSPORTATION 
AND RAIL PROGRAM 

SECTION .0400 - RAIL INDUSTRIAL 
ACCESS PROGRAM 

.0404 ELIGIBLE COSTS 

Costs eligible for Rl AP funding are as follows: 

( 1 ) Reasonable engineering costs; 

(2) Site preparation, including necessary grading and 
drainage to construct track(s); 

(3) Track construction; 

(4) Switches; and 

(5) Grade crossings and signals. 

HistoiyNote: Aulhorit}- G.S. 136-44.36: I43B-35UfJ) and 

(g): 

Eff. .April 30. 1997: 

Amended Eff. April 1 , 1999. 

.0413 REQUESTS FOR REIMBURSEMENT 

(a) Upon execution of the Grant Agreement, the Grantee 
may be required to submit periodic progress reports to the 
Department until the project tracks are completed. 

(b) The Department shall not reimburse the Grantee for 
eligible expenses until the Department verifies completion of 
the project tracks, the railroad certifies that it has used the 
project tracks, or the Department confirms that the railroad has 
used the project tracks. 

(c) The Grantee shall submit one itemized request for 
reimbursement to the Department upon completion of project 
work at the following address: 

Grants Administrator 

Rail Industrial Access Program 

North Carolina Department of Transportation 

PO Box 25201 

1 South Wilmington Street 

Raleigh. NC 27611 

(d) The Department shall examine the request for 
reimbursement to verify that the costs were necessary to 
accomplish the project. 

History Note: Authority' G.S. 1438-350(0 and (g): 
Eff. .4pril 30. 1997: 
Amended Eff. April 1, 1999. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 1 - NORTH CAROLINA ACUPUNCTURE 
LICENSING BOARD 

SECTION .0100 - LICENSURE 

.0105 QUALIFICATIONS FOR LICENSURE 
THROUGH LICENSE RECIPROCITY 

An applicant for licensure to practice acupuncture in North 
Carolina shall: 

(1) Submit a completed application; 

(2) Submit fees as required by Rule .0103 of this 
Section; 

(3) Have submitted directly to the North Carolina 
Acupuncture Licensing Board, an official letter from 
the licensing board of another jurisdiction with 
whom the North Carolina Acupuncture Licensing 
Board has a reciprocal licensing agreement, 
verifying that the applicant is currently licensed and 
in good standing in such jurisdiction. 

History Note: Author it}- G.S. 90-454: 90-455: 
Eff. April L 1999. 

CHAPTER 8 - BOARD OF CERTIFIED PUBLIC 
ACCOUNTANT EXAMINERS 

SUBCHAPTER 8A - DEPARTMENTAL RULES 

SECTION .0300 - DEFINITIONS 

.0301 DEFINITIONS 

(a) The definitions set out in G.S. 93- 1(a) shall apply when 
those defined terms are used in 21 NCAC 8. 

(b) In addition to the definitions set out in G.S. 93- 1(a), the 
following definitions and other definitions in this Section 
apply when these terms are used in 21 NCAC 8: 

(1) "Active," when used to refer to the status of a 
person, describes a person who possesses a North 
Carolina certificate of qualification and who has not 
otherwise been granted "Retired," "Inactive," or 
"Conditional" status; 

(2) "Agreed upon procedure" means a client has 
engaged a CPA to issue a report of findings based 
on specific procedures performed on specific subject 
matter of specified elements, accounts, or 
accounting infonnation that is part of but 
significantly less than a financial statement; 

(3) "AICPA" means the American Institute of Certified 
Public Accountants; 

(4) "Applicant" means a person who has applied to take 
the CPA examination; 

(5) "Attest service" means: 



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(A) any audit, 

(B) any review of a financial statement, 

(C) any compilation of a financial statement when 

the CPA expects, or reasonably might expect. (19) 

that a third party will use the compilation and 
the CPA does not disclose a lack of 
independence, 

(D) any examination of prospective financial 
information, and 

(E) any agreed upon procedure; 

(6) "Audit" means an examination of financial 
statements of a person by a CPA, conducted in 
accordance with generally accepted auditing 
standards, to determine whether, in the CPA's 
opinion, the statements conform with generally (20) 
accepted accounting principles or, if applicable, with 

another comprehensive basis of accounting; (21) 

(7) "Board" means the North Carolina State Board of 
Certified Public Accountant Examiners; 

(8) "Calendar year" means the 12 months beginning 
January 1 and ending December 3 1 ; 

(9) "Candidate" means a person whose application to 
take the CPA examination has been accepted and 
who may sit for the CPA examination; 

(10) "Client" means a person who orally or in writing (22) 
agrees with a licensee to receive any professional 
services; (23) 

(11) "Commission" means compensation, except a 
referral fee, for recommending or referring any 
product or service to be supplied by another person; 

(12) "Compilation of a financial statement" means 
presenting in the form of a financial statement 
information that is the representation of any other 
person without the CPA's undertaking to express 
any assurance on the statement; 

(13) "Conditional," when used to refer to the status of a (24) 
person, describes a person who holds a North (25) 
Carolina certificate of qualification under certain 
conditions as imposed by the Board, such as (26) 
additional requirements for failure to complete the 
required CPE hours in a calendar year; (27) 

(14) "Contingent fee" means a fee established for the 
performance of any service pursuant to an (28) 
arrangement in which no fee will be charged unless 

a specified finding or result is attained, or in which (29) 

the amount of the fee is otherwise dependent upon 

the finding or result of such service; (30) 

(15) "CPA" means certified public accountant; 

(16) "CPA firm" means a sole proprietorship, a (31) 
partnership, a professional corporation. a 
professional limited liability company, or a 
registered limited liability partnership which uses 
"certified public accountant(s)" or "CPA(s)" in or 

with its name or offers to or renders any attest (32) 

services in the public practice of accountancy; 

( 1 7) "CPE" means continuing professional education; 

(18) "Disciplinary action" means revocation or 
suspension of, or refusal to grant, membership, or (33) 



the imposition of a reprimand, probation, 

constructive comment, or any other penalty or 

condition; 

"Examination of prospective financial information" 

means an evaluation by a CPA of: 

(A) a forecast or projection, 

(B) the support underlying the assumptions in the 
forecast or projection, 

(C) whether the presentation of the forecast or 
projection is in conformity with AICPA 
presentation guidelines, and 

(D) whether the assumptions in the forecast or 
projection provide a reasonable basis for the 
forecast or projection; 

"FASB" means the Financial Accounting Standards 

Board; 

"Forecast" means prospective financial statements 

that present, to the best of the responsible party's 

knowledge and belief, an entity's expected financial 

position, results of operations, and changes in 

financial position or cash fiows that are based on the 

responsible party's assumptions reflecting conditions 

it expects to exist and the course of action it expects 

to take; 

"GASB" means the Governmental Accounting 

Standards Board; 

"Inactive," when used to refer to the status of a 

person, describes one who has requested inactive 

status and been approved by the Board and who 

does not use the title "certified public accountant" 

nor does he or she allow anyone to refer to him or 

her as a "certified public accountant," and neither he 

or she nor anyone else refers to him or her in any 

representation as described in 21 NCAC 8 A 

.0308(b). 

"IRS" means the Internal Revenue Service; 

"Jurisdiction" means any state or territory of the 

United States or the District of Columbia; 

"License year" means the 12 months beginning July 

1 and ending June 30; 

"Member of a CPA firm" means any CPA who has 

an equity ownership interest in a CPA firm; 

"NASBA" means the National Association of State 

Boards of Accountancy; 

"NCACPA" means the North Carolina Association 

of Certified Public Accountants; 

"North Carolina office" means any office physically 

located in North Carolina; 

"Participating CPA firm" means a CPA firm 

participating in the SQR program. It does not 

include CPA firms exempt by reason of 21 NCAC 

81V1 .0102(a) or deemed in compliance pursuant to 

21 NCAC8M .0104; 

"Person" means any natural person, corporation. 

partnership, professional limited liability company, 

registered limited liability partnership. 

unincorporated association, or other entity; 

"Professional" means arising out of or related to the 



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particular knowledge or skills associated with CPAs; 

(34) "Projection" means prospective financial statements 
that present, to the best of the responsible party's 
knowledge and belief, given one or more 
hypothetical assumptions, an entity's expected 
financial position, results of operations, and changes 
in financial position or cash flows that are based on 
the responsible party's assumptions reflecting 
conditions it expects would exist and the course of 
action it expects would be taken given such 
hypothetical assumptions; 

(35) "Referral fee" means compensation for 
recommending or referring any service of a CPA to 
any person; 

(36) "Retired," when used to refer to the status of a 
person, describes one possessing a North Carolina 
certificate of qualification who verifies to the Board 
that the applicant does not receive or intend to 
receive in the future any earned compensation for 
current personal services in any job whatsoever and 
will not return to active status. However, retired 
status does not preclude volunteer services for 
which the retired CPA receives no direct nor indirect 
compensation so long as the retired CPA does not 
sign any documents, related to such services, as a 
CPA: 

(37) "Revenue Department" means the North Carolina 
Department of Revenue: 

(38) "Review" means to perform an inquiry and 
analylical procedures that permit a CPA to 
determine whether there is a reasonable basis for 
expressing limited assurance that there are no 
material modifications that should be made to 
financial statements in order for them to be in 
conformity with generally accepted accounting 
principles or, if applicable, with another 
comprehensive basis of accounting: 

(39) "SQR Advisory Committee" means the State Quality 
Review Advisory Committee to the Board: 

(40) "SQR Program" means the State Quality Review 
Program of the North Carolina State Board of 
Certified Public Accountant Examiners: 

(41) "SQR Review team" means that team of CPAs 
which reviews a CPA firm pursuant to the 
requirements of Subchapter 81V1. A review team 
may be comprised of one or more members; 

(42) "SQR Review team captain" means that member of 
a review team who is responsible for the review and 
supervises the other members of the team: 

(43) "SQR Reviewer" means a member of a review team 
including the review team captain: 

(44) "Suspension" means a revocation for a specified 
period of time. A CPA may be reinstated after a 
specific period of time if the CPA has met all 
conditions imposed b\' the Board at the time of 
suspension; and 

(45) "Trade name" means a name used to designate a 
business enterprise. 



Histon Note: Authority G.S. 93-1: 93-1 2(8c): 

Eff. February 1. 1976: 

Readopted Ejf. September 26. 1977: 

Amended Eff. April L 1999: August 1. 1998: February 1. 

1996: April). 1994. 

SUBCHAPTER 8F - REQUIREMENTS FOR 

CERTIFIED PUBUIC ACCOUNTANT 

EXAMINATION AND CERTIFICATE APPLICANTS 

SECTION .0100 - GENERAL PROVISIONS 

.0107 COMMUNICATION OF RESULTS OF 
CPA EXAMINATIONS 

(a) The Board shall communicate to candidates in writing 
the result achieved in each of their examinations. Grades 
awarded to candidates shall not be released to third parties 
except by written consent of the candidate. 

(b) In no event shall any information concerning answers of 
candidates be given to anyone other than the candidate. 

(c) Examination grades shall be mailed on the uniform 
national release date agreed to with the NASBA and the 
AICPA. However, candidates may receive their grades 
personally at the offices of the Board on the release date by 
notifying the Executive Director in writing not later than five 
days prior to the release date. 

(d) Information prepared by the Board's staff about the 
results of the examination and intended for public infomiation 
shall be made available no earlier than the day after the 
uniform national release date. 

Histoiy Note: Authority G.S. 93-12(2): 93-12(3): 

Eff. Februaiy 1. 1976: 

Readopted Eff. September 26. 1977: 

Amended Eff. .ipril L >999: .April 1. 1994: May 1. 1989: 

December I. 1987. 

SECTION .0500 - APPLICATIONS FOR 
CERTIFICATES 

.0504 CANDIDATES' ACCOUNTANCY LAW 
COURSE REQUIREMENT 

(a) Within one year prior to applying for certification, all 
candidates for certification must pass an open book 
examination on the North Carolina Accountancy Statutes and 
Rules, including the Rules of Professional Ethics and Conduct 
contained therein. 

(b) In lieu of taking the examination, a candidate may 
complete an eight-hour CPE course on the subject of the 
examination within one year prior to applying for the CPA 
certificate. Such course or examination must meet the 
requirements of 21 NCAC 8G .0404(a). This course may 
count toward the candidate's annual CPE requirement. 

(c) A non-resident candidate for a reciprocal application 
must comply with Paragraph (a) or (b) of this Rule within 120 
days of receiving his or her CPA certificate or the certificate 
shall expire and the individual shall reinstate the certificate 
pursuant to 2 1 NCAC 8J .0 1 06. 



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APPROVED RULES 



History Note: Authorit}- G.S. 93-12(8a); 

Eff. October 1. 1987: 

Amended Eff. April L 1999: May f 1989. 



forfeited, or retired more than 10 years before tiie date of 
reapplication, must comply with all current requirements for a 
reciprocal certificate. 



SUBCHAPTER 8H - RECIPROCITY 

.0101 RECIPROCAL CERTIFICATES 

(a) A person from another jurisdiction who desires to offer 
or render professional services as a CPA to his or her 
employer or a client in this state shall meet all the requirements 
imposed on an applicant under G.S. 93-12(5) or the 
requirements of G.S. 93-12(6). 

(b) The fee for a reciprocal certificate shall be the maximum 
amount allowed by G.S. 93-12(7a). 

(c) An applicant for a reciprocal certificate shall meet the 
following requirements: 

( 1 ) The applicant has the legal authority to use the CPA 
title and to practice public accountancy in a 
jurisdiction. 

(2) The applicant has received a score of at least 75 on 
each part of the Uniform CPA Examination. 

(d) An applicant applying for a reciprocal certificate under 
G.S. 93-12(6) must meet the following requirements which the 
Board considers to be substantially equivalent to those of G.S. 
93-12(5): 

(1) The applicant shall have 150 semester hours of 
college or university education including a bachelors 
or higher degree with a concentration in accounting 
and other courses that the Board may require from a 
college or university that is acceptable to the Board 
and one year of experience in the field of accounting 
verified by a certified public accountant who was 
the applicant's direct supervisor; or 

(2) The applicant: 

(A) within 10 years immediately preceding the 
tiling date of the application, has had four 
years of experience in the field of accounting 
under the direct supervision of a CPA who 
held a valid license during the period of direct 
supervision in any state or territory of the 
United States or the District of Columbia; or 

(B) has 10 years of experience in the Held of 
accounting, or 10 years of experience 
teaching accounting as defined and calculated 
in 21 NCAC 8F .0409, or any combination of 
such experience earned within the 12 years 
immediately preceding the filing date of the 
application; and 

(3) During the two years preceding the applicant's tiling 
date for a reciprocal certificate, the applicant has 
completed 80 hours of CPE in courses meeting the 
requirements of 21 NCAC 8G .0401(a). However, 
an applicant who received his or her initial CPA 
license within four years from the filing date of the 
application for a reciprocal certificate is exempt 
from this CPE requirement. 

(e) An applicant for change in status, reissuance, or 
reinstatement of a reciprocal certificate that was inactive. 



History Note: Authority G.S. 93-12(6): 93-1 2(7a): 

Eff. February 1 . 1976: 

Readopted Eff. September 26. 1977: 

Amended Eff. April L 1999: August I. 1998: September /, 

1992: March 1. 1990. 

.0102 TEMPORARY PERMIT 

(a) The Board may grant temporary permits only to 
applicants for reciprocal certificates pending their qualification 
under 21 NCAC 8H .0101 and application to the Board on 
forms provided by the Board. 

(b) Upon approval of a temporary permit, the Board will 
issue the applicant a statement confirming that the CPA is in 
good standing in the state issuing the CPA's certificate and is 
entitled temporarily to use the CPA title and engage in the 
public practice of accountancy in North Carolina for a stated 
period. The stated period shall expire 120 days after issue or 
upon issuance of the individual's reciprocal certificate, 
whichever comes first. 

Histoiy Note: Authority G.S 93-12(6): 93-12(7a): 

Eff. February 1. 1976: 

Readopted Eff. September 1 . 1977: 

Amended Eff. April L 1999: April 1, 1994: May 1. 1989: 

December 1. 1982. 

SUBCHAPTER 81 - REVOCATION OF 

CERTIFICATES AND OTHER 

DISCIPLINARY ACTION 

.0104 MODIFICATION OF DISCIPLINE AND 
NEW CERTIFICATE 

(a) A person or CPA firm that has been disciplined by the 
Board may apply to the Board for modification of the 
discipline at any time after the effective date of the Board's 
decision imposing it; however, if any previous application has 
been made with respect to the same discipline, no additional 
application shall be considered before the lapse of one year 
following the Board's decision on that previous application. 
Provided, however, that an application to modify' permanent 
revocation shall not be considered until after five years from 
the date of the original discipline, nor more often than three 
years after the Board's last decision on any prior application 
for modification. 

(b) The application for modification of discipline or for a 
new certificate shall be in writing, shall set out and, as 
appropriate, shall demonstrate good cause for the relief sought. 
The application for an individual shall be accompanied by at 
least three supporting recommendations, made under oath, 
from CPAs who have personal knowledge of the activities of 
the applicant since the discipline was imposed. The 
application for a CPA tlrm shall be accompanied by at least 
three supporting recommendations, made under oath, for each 
CPA partner, CPA member, or CPA shareholder from CPAs 



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who have personal knowledge of the activities of the CPA 
partner, CPA member, or CPA shareholder since the discipline 
was imposed. 

(c) "Good cause" as used in Paragraph (b) of this Rule 
means that the applicant is completely rehabilitated with 
respect to the conduct which was the basis of the discipline. 
Evidence demonstrating such rehabilitation shall include 
evidence: 

( 1 ) that such person has not engaged in any conduct 
during the discipline period which, if that person 
had been licensed or registered during such period, 
would have constituted the basis for discipline 
pursuant to G.S. 93-12(9); 

(2) that, with respect to any criminal conviction which 
constituted any part of the previous discipline, the 
person has completed the sentence imposed; and 

(3) that, with respect to a court order, restitution has 
been made to any aggrieved party. 

(d) In determining good cause, the Board may consider all 
the applicant's activities since the disciplinary penalty was 
imposed, the offense for which the applicant was disciplined, 
the applicant's activities during the time the applicant was in 
good standing with the Board, the applicant's rehabilitative 
efforts, restitution to damaged parties in the matter for which 
the penalty was imposed, and the applicant's general reputation 
for truth and professional probity. For the purpose of this 
Paragraph, "applicant" shall, in the case of a CPA firm, 
include CPA partners, CPA members, or CPA shareholders. 

(e) Any person who applies for a modification of discipline 
and for a new certificate after revocation shall, in addition to 
the other requirements of this Section, comply with all 
qualifications and requirements for initial certification which 
exist at the time of the application. 

(f) No application for a new certificate or for modification 
of discipline shall be considered while the applicant is serving 
a sentence for any criminal offense. Serving a sentence 
includes incarceration, probation (supervised or unsupervised), 
parole, or suspended sentence, any of which are imposed as a 
result of having been convicted or plead to a criminal charge. 

(g) An application shall ordinarily be ruled upon by the 
Board on the basis of the recommendations and evidence 
submitted in support thereof. However, the Board may make 
additional inquiries of any person or persons, or request 
additional evidence it deems appropriate. 

(h) As a condition for a new certificate or modification of 
discipline, the Board may impose terms and conditions it 
considers suitable. 

Histoiy Note: Filed as a Temporary Amendment Eff. 

September 15. 1983, for a period of 108 days to expire 

January 1. 1984: 

Authority G.S. 55B-12: 93-2: 93-l2(7a): 93-12(7h): 93-12(9): 

Eff. September 1. 1982: 

Amended Eff. .April L 1999: August 1. 1998: Februaiy 1, 

1996: .April 1. 1994. 

SUBCHAPTER 8J - RENEWALS AND 
REGISTRATIONS 



.0102 SUPERVISION OF CPA OFFICES 

History Note: Autlmrity G.S. 93-12(8a)(5): 93-12(9): 

Eff. Februaiy 1. 1977: 

Readopted Eff. September 26. 1977: 

Amended Eff. .April 1. 1994: May 1. 1989: August 1. 1988: 

June 16. 1980: 

Repealed Eff April 1. 1999. 

.0107 MAILING ADDRESSES OF CERTIFICATE 
HOLDERS AND CPA FIRMS 

All certificate holders and CPA firms shall notify the Board 
in writing within 30 days of any change in address or business 
location. 

History Note: Authority G.S. 55B-12: 93-12(7b)(5): 

93-12(9): 

Eff. October I 1984: 

Amended Eff. .April L 1999: .April 1. 1991: August 1, 1986. 

.0108 CPA FIRM REGISTRATION 

(a) All CPA firms shall register with the Board within 30 
days after opening a North Carolina office or beginning a new 
CPA firm unless they are a professional corporation, 
professional limited liability company, or registered limited 
liability partnership, in which case they shall register prior to 
formation pursuant to 21 NCAC 8K .0104 and .0301. 

(b) In addition to the initial registration required by 
Paragraph (a) of this Rule, all CPA firms shall register 
annually by January 31 with the Board upon forms provided 
by the Board. 

(c) The information provided by the registration shall 
include: 

(1) Either an application for exemption from SQR, a 
request to be deemed in compliance with SQR or 
registration for SQR, pursuant to 21 NCAC 8M 
.0102 and .0104; 

(2) For all CPA firms not exempt from the SQR 
program, with the registration immediately 
following its review, the affidavit required by 21 
NCAC8M .0102(d); 

(3) For all North Carolina offices, an office registration 
form indicating the name of the office supervisor, 
the location of the office and its telephone number; 

(4) For all partnerships or registered limited liability 
partnerships, a list of all resident and nonresident 
partners of the partnership; 

(5) For all professional limited liability companies, the 
information set forth in 21 NCAC 8K .0104(d); 

(6) For all incorporated CPA firms, the information set 
forth in 21 NCAC 8K .0104(d); 

(7) For all CPA firms, the appropriate registration fees 
as set forth in 21 NCAC 8J .0110; and 

(8) For all new CPA firms, the percentage of ownership 
held individually by each owner who has five 
percent or more of ownership: 

(A) in the new CPA firm; and 

(B) at the year-end in each CPA firm in which 



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that owner was an owner during the preceding 

two years. 
(9) For all changes in ownership of a CPA firm, the 
percentage of ownership held individually by each 
owner who has five percent or more of ownership. 

(d) All information provided for registration with the Board 
shall pertain to events of and action taken during the year 
preceding the year of registration. The last day of the 
preceding calendar year is the "year-end". 

(e) With regard to Paragraph (c)(3) of this Rule, one 
representative of a CPA firm may file all documents with the 
Board on behalf of the CPA firm's offices in North Carolina. 
However, responsibility for compliance with this Rule shall 
remain with each office supervisor. 

(f) With regard to Paragraph (c)(4) or (c)(5) of this Rule, 
one annual listing by a representative of the partnership, 
registered limited liability partnership, or professional limited 
liability company shall satisfy the requirement for all owners 
of the CPA firm. However, each owner shall remain 
responsible for compliance with this Rule. The absence of a 
filing under Paragraph (c)(4) or (c)(5) of this Rule shall be 
construed to mean that no partnership, registered limited 
liability partnership, or professional limited liability company 
exists. 

(g) Notice that a CPA firm has dissolved or any change in 
the information required by Paragraph (c)(3) of this Rule shall 
be delivered to the Board's office within 30 days after the 
change or dissolution occurs. A professional corporation or 
professional limited liabilit\' company which is dissolving shall 
deliver the Articles of Dissolution to the Board's office within 
30 days of filing with the Office of the Secretary of State. 

(h) Upon written petition by a CPA finn, the Board may, in 
its discretion, grant the CPA firm a conditional registration for 
a period of 60 days or less, if the CPA firm shows that 
circumstances beyond its control prohibited it from registering 
with the Board, completing a quality review or notifying the 
Board of change or dissolution pursuant to Paragraphs (a), (b), 
(c), and (g) of this Rule. The Board may grant a second 
extension under continued extenuating circumstances. 

(i) A complete registration, as required by 21 NCAC 8J 
.0108(b) and (c), shall be postmarked with proper postage not 
later than the last day of January unless that date fails on a 
weekend or federal holiday, in which case the registration shall 
be postmarked or received in the Board office on the next 
business day. Only a U.S. Postal Service cancellation shall be 
considered as the postmark. If a registration is sent to the 
Board office via a private delivery service, the date the 
package is received by the delivery service shall be considered 
as the postmark. 

History- Note: A uthority G. S. 55 B- 10: 55B- 1 2: 5 7C- 1 : 5 7C- 

2: 59-84.2: 93-1 2<8a): 93-12(80: 

EJf.June I. 1985: 

Amended Eff. April A 1999: August 1. 1998: August I. 1995: 

April 1. 1994. 

.0110 REGISTRATION AND SQR FEES 

The annual registration fees shall be as follows: 



(1) For participation within SQR or for a request to be 
deemed in compliance with SQR, seventy-five 
dollars ($75.00) plus five dollars ($5.00) for each 
additional North Carolina office of the CPA firm not 
excused from SQR by 21 NCAC 8M .0204; 

(2) For all professional corporations or professional 
limited liability companies, twenty-five dollars 
($25.00); and 

(3) For all non-incorporated CPA firms which have 
offices both within and outside the state of North 
Carolina, whether sole proprietorships, partnerships, 
or registered limited liabilit>' partnerships, an 
amount equal to two thousand five hundred dollars 
($2,500.00) or the number of CPA members of the 
CPA firm multiplied by ten dollars ($10.00), 
whichever is less. 

History Note: .Authority G.S. 558-11: 558-12: 57C-1: 57C- 

2: 59-84.2: 93-12(7b): 93-l2(8a): 93-12(80: 

Eff.. April I. 1991: 

Amended Eff. .April 1. 1999: August 1. 1998: April 1, 1994. 

.0111 COMPLIANCE WITH CPA FIRM AND 
SQR REGISTRATION 

If a CPA firm fails to comply with any part of 2 1 NCAC 8J 
.0 1 08, 8J .0 1 1 0, or 8M .0 1 02, the Board may take disciplinary 
action against the CPA firm's members. Such discipline may 
include: 

(1) a conditional license upon such conditions as the 
Board may deem appropriate for non-compliance of 
less than 60 days; 

(2) a conditional license and one hundred dollar 
($100.00) civil penalty for non-compliance in excess 
of 60 days but not more than 120 days; 

(3) a suspension of each member's CPA certificate for a 
period of not less than 30 days for non-compliance 
in excess of 120 days. 

Histon-Note: Authorit\- G.S. 558-12: 5''C-1: 5:'C-2: 59- 
84.2: 93-12(80: 93-12(9): 
Eff .April 1. 1994: 
.Amended Eft. .April 1 . 1999. 

SUBCHAPTER 8K - PROFESSIONAL 

CORPORATIONS AND PROFESSIONAL 

LIMITED LIABILITY COMPANIES 

SECTION .0100 - GENERAL PROVISIONS 

.0104 REGISTRATION AND RENEWAL 

(a) Domestic CPA professional corporations or professional 
limited liabilit\ companies must be formed and all CPA 
professional corporations or professional limited liability 
companies must be operated in accordance with the 
requirements set out in G.S. 55B and 57C. Before any CPA 
professional corporation or professional limited liabilit> 
company can offer to perform or perform any professional 
services in this state, it must register with the Board. 



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(b) Initial registration. 

( 1 ) Domestic CPA Corporation or Professional Limited 
Liability Company. In order to register initially with 
this Board, the incorporators of a domestic CPA 
corporation or professional limited liability 
company, prior to incorporation of the CPA firm, 
must: 

(A) prepare and file with the Board the articles of 
incorporation along with any supporting 
documents and appropriate checks for fees 
payable to the Secretary of State; 

(B) complete and file with the Board the 
application for professional corporation or 
professional limited liability company 
registration form along with any supporting 
documents; and 

(C) pay to the Board an initial registration fee of 
fifty dollars ($50.00). 

(2) Foreign CPA Corporation or Foreign Limited 
Liability Company. To register initially with the 
Board, the officers of a foreign corporation or 
foreign limited liability company, prior to 
performing services or offering to perform 
services in North Carolina, must submit to the 
Board: 

(A) on an application for registration form 
provided by the Board, a list of its present 
shareholders or members and the state or 
territory issuing the CPA certificate, or the 
equivalent, of each shareholder or member 
and the number of each certificate or 
equivalent; and 

(B) the documents required by G.S. 55A-6I, 
55A-62, and 57C-7. 

(c) In addition to its initial registration, every CPA 
corporation or professional limited liability company, whether 
domestic or foreign, must register annually pursuant to 21 
NCAC8J.0108. 

(d) The application for registration by a CPA corporation or 
professional limited liability company shall provide the 
following information: 

( 1 ) the name and address of the professional corporation 
or professional limited liability company; 

(2) the address of each office operated or maintained by 
the corporation or professional limited liability 
company; 

(3) the names and addresses of all the officers, 
directors, shareholders, or members; and 

(4) the names and addresses of all the employees and 
managers of the corporation or professional limited 
liability company licensed by the Board under the 
provisions of G.S. 93. 

History Note: Authority G.S. 55B-11; 57C-1; 57 C -2: 59- 

S4.2: 93-8: 93-12(7b): 93-12(8c): 

Eff. Februarys I. 1976: 

Readopted Eff. September 26. 1977: 

Amended Eff. April 1. 1999: April 1. 1994: April I, 1991: .May 



1, 1989. 

.0105 SUPPLEMENTAL REPORTS 

(a) The Board may request in writing such supplemental 
reports as it deems appropriate fi-om any professional 
corporations or professional limited liabilir>' companies 
registered with the Board pursuant to G.S. 55B, 57C, and these 
rules. The professional corporation or professional limited 
liability company shall file such reports with the Board's 
office within 30 days from the date it received the request. 

(b) In addition to the supplemental reports required by 21 
NCAC 8J .0108(g), professional corporations or professional 
limited liability companies registered with the Board pursuant 
to G.S. 55B and 57C shall file a certified copy of all 
amendments to the articles of incorporation or articles of 
organization prior to the effective date of each amendment. 
They shall also file a copy of any amendment to the by-laws, 
certified to be a true copy by the secretary or an assistant 
secretary of the corporation or professional limited liability 
company, prior to adoption of the amendment. 

History Note: Authority G.S. 55B-11: 57C-1: 57C-2: 

93-12(3): 

Eff. February 1, 1976: 

Readopted Eff. September 26. 1977; 

Amended Eff April 1. 1999: April 1. 1994: April 1. 1991: May 

1. 1989. 

SUBCHAPTER 8IVI - STATE QUALITY 
REVIEW PROGRAM 

SECTION .0100 - GENERAL SQR 
REQUIREMENTS 

.0102 REGISTRATION REQUIREMENTS 

(a) A CPA firm which has not performed any audits, 
reviews, compilations, or agreed upon procedures during the 
12 months prior to the year-end of the registration required by 
21 NCAC 8J .0108(a) and (b) shall be exempt from the SQR 
program for the 12 months following the year-end but not from 
registering with the Board. 

(b) Unless exempt under Paragraph (a) of this Rule, each 
ongoing CPA firm shall complete an SQR within 24 months 
following the year-end of each registration unless it has 
completed an SQR within 24 months prior to the year-end. 

(c) Unless exempt under Paragraph (a) of this Rule, a new 
CPA firm shall complete its initial SQR within 24 months of 
the date of its initial registration pursuant to 21 NCAC 8J 
.0108(a), 

(d) Every CPA firm not exempt from SQR by Paragraph (a) 
of this Rule, after completion of a quality review, shall procure 
a statement signed by the review team captain, a statement 
signed by a member of the CPA firm being reviewed, or letter 
of acceptance from an approved review program, stating that 
the CPA firm has completed an SQR or one of the review 
programs listed or referred to in 21 NCAC 8M .0104. The 
CPA fimi shall submit the statement or documentation with the 
annual registration following the review as set forth in 21 



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NCAC8J .0108(c)(2). 

(e) For purposes of this Rule, an SQR is complete when the 
review team has delivered its report required by 21 NCAC 8M 
.0306 to the reviewed CPA firm. Any quality review other 
than SQR is complete when the review team has delivered its 
final report to the reviewed CPA firm. If mailed, a report shall 
be deemed delivered when postmarked. 



Board on its activities and. further, at any time the Board 
requests a special report. 

History Note: Authority G.S. 93-12(2): 93-1 2(8c): 

Eff. April 1, 1991: 

Amended Eff. April [^ 1999: February I, 1996: August I. 

1995. 



History Note: Authority G.S. 93-1 2f7b): 93-1 2(8c): 

EJf. April 1. 1991: 

Amended Eff. April L 1999: August I. 1998: Fehruaiy 1. 

1996: April 1. 1994. 

SECTION .0200 - DUTIES OF THE 
REVIEWED FIRM 

.0204 CERTAIN OFFICES EXCUSED 

The following offices of participating CPA firms are not 
required to participate in the SQR program: 

(1) offices which are not North Carolina otTices, and 
which have not performed any audits, reviews, 
compilations, or agreed upon procedures for clients 
in North Carolina; and 

(2) North Carolina offices which have not performed 
any audits, reviews, compilations, or agreed upon 
procedures for the 1 2 months prior to the year-end 
set forth in 21 NCAC 8J .0108. 

History Note: A uthorit}' G. S. 93- 1 2 (8c) : 

Eff April 1. 1991: 

Amended Eff. April L 1999: August 1. 1998 

SECTION .0400 - SQR ADVISORY COMMITTEE 

.0401 SQR ADVISORY COMMITTEE - MEMBERS 
AND DUTIES 

(a) The SQR Advisory Committee shall consist of six CPAs 
appointed by the Board and one Board member appointed by 
the Board's President. 

(b) The SQR Committee shall: 

(1 ) beginning January 1. 1996, review all modified and 
adverse SQR reports and letters of comments, if an\. 
submitted by review team captains under the SQR 
program; 

consider all objections filed pursuant to 21 NCAC 
8M .0402(a); and 

make recommendations to the Board consistent with 
these Rules concerning each of Subparagraphs 
(b)(1) and (2) of this Rule. 

(c) Prior to making any recommendations to the Board, the 
Committee shall give notice of its proposed recommendation 
to the CPA firm to which the recommendation pertains. 

(d) The Committee shall also recommend remedial action to 
participating CPA firms receiving modified or adverse reports 
which, if followed, could increase the participating CPA firm's 
ability to perform quality services in the public practice of 
accounting. 

(e) The Committee shall report at least annualK to the 



(2) 
(3) 



SUBCHAPTER 8N - PROFESSIONAL ETHICS 
AND CONDUCT 

SECTION .0200 - RULES APPLICABLE 
TO ALL CPAs 

.0202 DECEPTIVE CONDUCT PROHIBITED 

(a) Deception Defined. A CPA shall not engage in 
deceptive conduct. Deception includes fraud or 
misrepresentation and representations or omissions which a 
CPA either knows or should know have a capacity or tendency 
to deceive. Deceptive conduct is prohibited whether or not 
anyone has been actually deceived. Deception includes not 
only deceptive statements but also includes the knowing 
failure to disclose material facts. 

(b) Prohibited Deception. Prohibited conduct under this 
Section includes but is not limited to deception in: 

( 1 ) obtaining or maintaining employment; 

(2 ) obtaining or keeping clients; 

(3) obtaining or maintaining certification, retired status, 
or exemption from SQR; 

(4) reporting CPE credits; 

(5) certifying the character or experience of exam or 
certificate applicants; 

(6) implying abilities not supported by valid education, 
professional attainments, or licensing recognition; 

(7) asserting that services or products sold in connection 
with use of the CPA title are of a particular quality 
or standard when they are not; 

(8) creating false or unjustified expectations of 
favorable results; 

(9) using or permitting another to use the CPA title in a 
form of business not permitted by the accountancy 
laws or rules; 

(10) permitting anyone not certified in this state 
(including one licensed in another state) to 
unlawfulK use the CPA title in this state or to 
unlawfully operate as a CPA firm in this state; or 

(11) falsifying a review, report, or any required program 
or checklist of any quality review program. 

Histoiy Note: Authority G.S. 55B-12: 57C-2-01: 93-12(9): 
Eff April 1, 1994: 
Amended Eff. April L 1999. 

SECTION .0300 - RULES APPLICABLE TO 

ALL CPAs WHO USE THE CPA TITLE IN 

OFFERING OR RENDERING PRODUCTS 

OR SERVICES TO CLIENTS 



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.0302 FORMS OF PRACTICE 

(a) Authorized Forms of Practice. A CPA who uses CPA 
in or with the name of the business or offers or renders attest 
services in the pubhc practice of accountancy to clients shall 
do so only through a duly authorized sole proprietorship, 
partnership. Professional Corporation, Professional Limited 
Liability Company, or Registered Limited Liability 
Partnership. 

(b) Authorized Ownership. A CPA firm may have a 
minority ownership of up to 49 percent owned by non-CPAs 
with the exception of Professional Corporations organized 
under G.S. 55B or Professional Limited Liability Companies 
organized under G.S. 57C which shall not have an\ non-CPA 
ownership. A CPA firm shall have majority ownership of at 
least 5 1 percent and be controlled in law and fact by holders of 
valid CPA certificates who have the unrestricted privilege to 
use the CPA title and to practice public accountancy in a 
jurisdiction and at least one whom shall be licensed by this 
Board. 

(c) CPA Firm Registration Required. A CPA shall not 
offer or render professional services through a CPA firm 
which is in violation of the registration requirements of 21 
NCAC8J .0108. 8J .01 10. or 8M .0102. 

(d) Supervision of CPA Firms. Every North Carolina office 
of a CPA firm registered in North Carolina shall be actively 
and locally supervised by a designated actively licensed North 
Carolina CPA whose primary responsibility and a 
corresponding amount of time shall be work performed in that 
office. 

(e) CPA Firm Requirements for Non-CPA Ownership. A 
CPA firm and its designated supervising CPA partner shall be 
held accountable for the following in regard to a non-CPA 
owner: 

(1) a non-CPA owner shall be a natural person or a 
general partnership or limited liability partnership 
directly owned by natural persons; 

(2) a non-CPA owner shall actively participate in the 
business of the firm or an affiliated entity as his or 
her principal occupation; 

(3) a non-CPA owner shall comply with all applicable 
accountancy statutes and the administrative code; 

(4) a non-CPA owner shall be of good moral character 
and shall be dismissed and disqualified from 
ownership for an\ conduct that, if committed by a 
licensee, would result in a discipline pursuant to 
G.S. 93-12(9); 

(5) a non-CPA owner shall report his or her name, home 
address, home phone number, and social security 
number on the CPA firm"s registration; and 

(6) a non-CPA owner's name may not be used in the 
name of the CPA firm or held out to clients or the 
public that implies the non-CPA owner is a CPA. 

History Note: Authority- G.S. 55B-I2: 5^C-2-01: 93-12(9): 

Eff. April 1. 1994: 

Amended Eff. April L 1999: August I. 1995. 



INTEREST 

(a) Personal Financial Interest in Advice. When offering or 
rendering accounting or related financial, tax. or management 
advice, a CPA shall be objective and shall not place the CPA's 
own financial interests nor the financial interests of a third 
party ahead of the legitimate financial interests of the CPA's 
client or the public in any context in which a client or the 
public can reasonably expect objectivity from one using the 
CPA title. 

(b) Expectation of Objectivity Presumed. If the CPA uses 
the CPA title in any way to obtain or maintain a client 
relationship, the Board will presume the reasonable 
expectation of objectivity. 

(c) Acceptance of a Commission or Referral Fee. A CPA 
shall not for a commission recommend or refer to a client any 
product or service, or for a commission recommend or refer 
any product or service to be supplied by a client, or receive a 
commission, when the CPA also performs for that client: 

( 1 ) an audit or review of a financial statement; or 

(2) a compilation of a financial statement when the CPA 
expects, or reasonably might expect, that a third 
party will use the financial statement and the CPA's 
compilation report does not disclose a lack of 
independence; or 

(3) an examination of prospective financial information. 
This prohibition applies during the period in which the CPA is 
engaged to perform any of the services listed in Subparagraph 
(c)(2) of this Rule and the period covered by any historical 
financial statements involved in such listed services. 

(d) Acceptance of a Contingent Fee. 

( 1 ) The offering or rendering of professional services 
for. or the receipt of, a contingent fee by a CPA is 
not prohibited except for engaging to render or 
rendering by a CPA for a contingent fee: 

(A) of professional services for, or the receipt of 
such a fee from, any person for whom the 
CPA also performs attest services, during the 
period of the attest services engagement and 
the period covered bv any historical financial 
statements involved in such attest services; 
and 

(B) for the preparation of original or amended tax 
returns or claims for tax refunds. 

(2) Fees are not regarded as being contingent if fixed by 
courts or other public authorities or. in tax matters. 
if determined based on the results of judicial 
proceedings or the findings of governmental 
agencies. 

(e) For the purposes of this Rule, a CPA shall provide 
disclosure to a client in accepting a commission, referral, or 
contingent fee. A CPA shall provide disclosure in a written 
statement of the service or product to be rendered or referred 
with the contingent fee. commission, or referral fee to be 
charged or received. The written statement shall be dated; 
signed by the CPA and client in advance of any sale, referral, 
or service provided; and a copy given to the client. 



.0303 



OBJECTIVITY AND CONFLICTS OF 



Histoiy Note: Authority G.S. 55B-I2: 5 -C-2-0I: 93-12(9): 



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APPROVED RULES 



Eff. April 1. 1994: 
Amended Eff. April 1 . 1999. 

.0306 ADVERTISING OR OTHER FORMS OF 
SOLICITATION 

(a) Deceptive Advertising. A CPA shall not seek to obtain 
clients by advertising or using other forms of solicitation in a 
manner that is deceptive. 

(b) Specialty Designations. A CPA may advertise the 
nature of services provided to clients but the CPA shall not 
advertise or indicate a specialty designation or other title 
unless the CPA has met the requirements of the granting 
organization for the separate title or specialty designation and 
the individual is currently on active status and in good standing 
with the granting organization for the separate title or specialty 
designation. 

(c) The CPA firm shall offer to perform or advertise 
professional services only in the exact name of the CPA firm 
as registered with the Board. 

(d) Any CPA or CPA firm offering to or perfonning 
professional services via the internet shall include the 
following information on the internet: 

(1) CPA business or CPA firm name; 

(2) principal place of business; 

(3) business phone; and 

(4) North Carolina certificate number and North 
Carolina as state of certification. 

(e) The use of the phrase "certified public accountant(s)" or 
"CPA(s)" in the name of any business entity on letterhead, 
reports, business cards, brochures, office signs, telephone 
directories, or any other advertisements or forms or solicitation 
is prohibited except for registered CPA firms. 

History- Note: Authority G.S. 55B-12: 5''C-2-01: 93-12(9): 

Eff. April 1. 1994: 

Amended Eff. April L 1999: Februaiy 1. 1996. 

.0307 CPA FIRM NAMES 

(a) Deceptive Names Prohibited. A CPA or CPA firm shall 
not trade upon the CPA title through use of any name that 
would have the capacity or tendenc> to deceive. The name of 
one or more former members of the CPA firm, as defined in 2 1 
NCAC 8A .0301, may be included in the CPA firm name. The 
name of a non-CPA owner in a CPA firm name is prohibited. 

(b) Style of Practice. It is considered misleading if a CPA 
firm practices under a name or style which would tend to 
imply the existence of a parmership or registered limited 
liability partnership or a professional corporation or 
professional limited liability company of more than one CPA 
shareholder or CPA member or an association when in fact 
there is no partnership nor is there more than one CPA 
shareholder or CPA member of a CPA firm. For example, no 
CPA t1rm having just one CPA owner may have as a part of its 
name the words "associates" or "company" or their 
abbreviations. It is also considered misleading if a CPA 
renders non-attest professional services through a non-CPA 
firm using a name that implies any non-licensees are CPAs. 

(c) Any CPA firm that has continuously used an assumed 



name approved by the Board prior to April 1, 1999. may 
continue to use the assumed name, so long as the CPA firm is 
only owned by the individual practitioner, parmers, or 
shareholders who obtained Board approval for the assumed 
name. A CPA firm (or a successor firm by sale, merger, or 
operation of law) may continue to use the surname of a retired 
or deceased partner or shareholder in the CPA finn's name so 
long as that use is not deceptive. 

History Note: Authority G.S. 55B-12: 57C-2-01: 93-12(9): 

Eff April 1. 1994: 

Amended Eff. .April 1. 1999: August 1. 1995. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

SUBCHAPTER 32F - ANNUAL REGISTRATION 

.0103 FEE 

Each physician shall pay an annual registration fee of one 
hundred dollars ($100.00) to the Board every year in 
accordance with G.S. 90-15.1; except, each physician holding 
a resident's training license shall pay an annual registration fee 
of fifteen dollars ($15.00), and every physician who holds a 
special volunteer license shall pay an annual registration fee of 
ten dollars ($10.00). and every physician who holds a limited 
volunteer license shall pay no fee. 

Histoiy Note: A ulhority G. S. 90- 1 2: 90- 1 5. 1 : 

Eff. Fehruaiy 1. 1976: 

Amended Eff. December 1. 1995: October 1. 1994: November 

1. 1991: May 1. 1989: 

Temporary! Amendment Eff November 25. 1996: 

Temporary Amendment Eff'. November 25. 1996 expired on 

September 12. 199^: 

Temporaiy Amendment Eff. January 1. 1998: 

Amended Eff. h4a\- 1. 1999. 

SUBCHAPTER 32M - APPROVAL OF 
NURSE PRACTITIONERS 

.0101 DEFINITIONS 

The following definitions apply to this Subchapter: 

( 1 ) "Medical Board" means the North Carolina Medical 
Board. 

(2 ) "Board of Nursing" means the Board of Nursing of 
the State of North Carolina. 

(3) "Joint Subcommittee" means the subcommittee 
composed of members of the Board of Nursing and 
Members of the Medical Board to whom 
responsibility is given by G.S. 90-6 and G.S. 
90l7l.23(b)(14) to develop rules to govern the 
performance of medical acts b\ nurse practitioners 
in North Carolina. 

(4) "Nurse Practitioner or NP" means a currentK 
licensed registered nurse approved to perform 
medical acts, consultation, collaboration and 
evaluation of the medical acts performed. OnK a re 



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APPROVED RULES 



under an agreement with a licensed physician for 
ongoing supervision of a registered nurse approved 
by the Medical Board and the Board of Nursing may 
legally identify oneself as a Nurse Practitioner. It is 
understood that the nurse practitioner, by virtue of 
RN licensure, is independently accountable for those 
nursing acts which he or she may perform. 

(5) "Nurse Practitioner Applicant" means a registered 
nurse who may function prior to full approval as a 
Nurse Practitioner in accordance with Rule 
.0102(b)(4) of this Subchapter. 

(6) "Supervision" means the physician's function of 
overseeing medical acts performed by the nurse 
practitioner. 

(7) "Collaborative practice agreement" means the 
arrangement for nurse practitioner-physician 
continuous availability to each other for on-going 
supervision, consultation, collaboration, referral and 
evaluation of care provided by the nurse 
practitioner. 

(8) "Primary Supervising Physician" means the licensed 
physician who. by signing the nurse practitioner 
application, is held accountable for the on-going 
supervision, consultation, collaboration and 
evaluation of the medical acts performed by the 
nurse practitioner as defined in the site specific 
written protocols. 

(a) The primary supervising physician shall 
assume the responsibility of assuring the 
Boards that the nurse practitioner is qualified 
to perform those medical acts described in the 
site specific written protocols. 

(b) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a primary supervising physician. 

(c) A physician in a graduate medical education 
program who is also practicing in a non- 
training situation may supervise a nurse 
practitioner in the non-training situation if 
fully licensed. 

(9) "Back-up Supervising Physician" means the licensed 
physician who. by signing an agreement with the 
nurse practitioner and the primary supervising 
physician(s), shall be held accountable for 
supervision, consultation, collaboration and 
evaluation of medical acts by the nurse practitioner 
in accordance with the site specific written protocols 
when the Primary Supervising Physician is not 
available. 

(a) The signed and dated agreements for each 
back-up supervising physician(s) shall be 
maintained at each practice site. 

(b) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a back-up supervising physician. 

(c) A physician in a graduate medical education 



(12) 

(13) 
(14) 



program who is also practicing in a non- 
training situation may be a back-up 
supervising physician to a nurse practitioner 
in the non-training situation if fully licensed 
and has signed an agreement with the nurse 
practitioner and the primary supervising 
physician. 

(10) "Approval" means authorization by the Medical 
Board and the Board of Nursing for a registered 
nurse to practice as a nurse practitioner in 
accordance with this Subchapter. 

(1 1) "Written protocols" means the signed and dated set 
of written practice guidelines maintained at each 
practice site which describe the prescribing 
privileges, treatments, tests and procedures that 
define the scope of the nurse practitioner's medical 
acts in that setting. Clinical practice issues that are 
not covered by the written protocols require nurse 
practitioner/physician consultation, and 
documentation related to the treatment plan. 
"Volunteer practice" means practice without 
expectation of compensation or payment (monetary, 
in kind or otherwise) to the nurse practitioner either 
directly or indirectly. 

"Disaster" means a state of disaster as defined in 
G.S. 166A-4(3) and proclaimed by the Governor, or 
by the General Assembly pursuant to G.S. 1 66A-6. 
"Interim Status" means the privilege granted by the 
Boards to a graduate of an approved nurse 
practitioner educational program or a registered 
nurse seeking initial approval in North Carolina with 
limited privileges, as defined in Rule .0103(b)(4) of 
this Subchapter, while awaiting final approval to 
practice as a nurse practitioner. 
"Temporary Approval" means authorization by the 
Medical Board and the Board of Nursing for a 
registered nurse to practice as a nurse practitioner in 
accordance with this Rule for a period not to exceed 
18 months while awaiting notification of successful 
completion of the national certification examination. 

(16) "National Credentialing Body" means one of the 
following credentialing bodies that offers 
certification and re-certitlcation in the nurse 
practitioner's specialty area of practice: American 
Nurses Credentialing Center (ANCC); American 
Academy of Nurse Practitioners (AANP); National 
Certification Corporation of the Obstetric. 
Gynecologic and Neonatal Nursing Specialties 
(NCC); and the National Certification Board of 
Pediatric Nurse Practitioners and Nurses (PNP/TM). 

History Note: Authority G. S. 90-6: 90-18(14): 90-18.2: 

Etf. Jaimmy 1 . 1991: 

Amended Eff. Mgv L 1999: Jamiaiy 1. 1996. 

.0102 SCOPE OF PRACTICE 

The nurse practitioner shall be responsible and accountable 
for the continuous and comprehensive management of a broad 



(15) 



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APPROVED RULES 



range of personal health services for which the nurse 
practitioner is educationally prepared and for which 
competency has been maintained, with physician supervision 
and collaboration as described in 21 NCAC 32M .0109. These 
services include but are not restricted to: 

( 1 ) promotion and maintenance of health; 

(2) prevention of illness and disability; 

(3 ) diagnosing, treating and managing acute and chronic 
illnesses; 

(4) guidance and counseling for both individuals and 
families; 

(5) prescribing. administering and dispensing 
therapeutic measures, tests, procedures and drugs; 

(6) planning for situations beyond the nurse 
practitioner's expertise, and consulting with and 
referring to other health care providers as 
appropriate; and 

(7) evaluating health outcomes. 

Histoty Note: A uthohty G.S. 90-18114); 

Eff.Januaiy 1, 1991; 

Amended Eff. Ma^ L 1999; Januaiy 1. 1996. 

.0103 NURSE PRACTITIONER APPROVAL 

(a) Qualifications for nurse practitioner approval. A 
registered nurse shall be approved by the Medical Board and 
the Board of Nursing before the applicant may practice as a 
nurse practitioner. The Boards may grant approval to practice 
as a nurse practitioner to an applicant who: 

(1) is currently licensed as a registered nurse by the 
Board of Nursing; 

(2) has successfully completed an approved educational 
program as outlined in Rule .0103 of this 
Subchapter; or. as of January 1. 2000, meets the 
certification requirements set forth in Rule .0103(c) 
of this Subchapter; 

(3) has an unrestricted license to practice as a registered 
nurse and. if applicable, an unrestricted approval to 
practice as a nurse practitioner unless the Boards 
consider such condition and agree to approval; 

(4) submits any information deemed necessary to 
evaluate the application: 

(5) has a collaborative practice agreement with a 
primary supervising physician; and 

(6) pays the appropriate fee. 

(b) Application for nurse practitioner approval. 

(1) Application for nurse practitioner approval shall be 
made upon the appropriate forms and shall be 
submitted jointly by the nurse practitioner and 
primary supervising physician(s). 

(2) Applications for first-time approval in North 
Carolina shall be submitted to the Board of Nursing 
and then approved by both Boards as follows: 

(A) the Board of Nursing will verify compliance 
with Subparagraphs (a)( I ) - (4) of this Rule; 

(B) the Medical Board will verifV compliance 
with Subparagraphs (a)(4) - (6) of this Rule; 
and 



(C) the appropriate Board will notify applicant of 
final approval status. 

(3) Applications for approval of changes in practice 
arrangements for a nurse practitioner currently 
approved to practice in North Carolina: 

(A) addition or change of primary supervising 
physician shall be submitted to the Medical 
Board: 

(B) request for change(s) in the scope of practice 
shall be submitted to the Joint Subcommittee; 
and 

(C) the appropriate Board will notify applicant of 
final approval status. 

(4) Interim status for nurse practitioner applicant may 
be granted to a registered nurse who is a graduate of 
an approved nurse practitioner educational program 
as set forth in Rule .0103 of this Subchapter; or a 
registered nurse seeking first time approval to 
practice as a nurse practitioner in North Carolina 
who has worked previously as a nurse practitioner in 
another state and who meets the nurse practitioner 
educational requirements as set forth in Rule .0103 
of this Subchapter; and with the following 
limitations: 

(A) no prescribing privileges: 

(B) primary or back-up physicians shall be 
continuously available for appropriate 
ongoing supervision, consultation, 
collaboration and countersigning of notations 
of medical acts in all patient charts within two 
working days of nurse practitioner applicant- 
patient contact; 

(C) face-to-face consultation with the primary 
supervising physician shall be weekly with 
documentation of consultation consistent with 
Rule .0108(d)(4) of this Subchapter; and 

(D) may not exceed a period of six months. 

(5) Beginning January 1. 2000. first time applicants who 
meet the qualifications for approval, but are 
awaiting certification from a national credentialing 
body approved by the Board of Nursing, may be 
granted a temporary approval to practice as a nurse 
practitioner Temporary approval is valid for a 
period not to exceed 18 months from the date 
temporarv approval is granted or until the results of 
the applicant's certification examination are 
available, whichever comes first. 

(6) The registered nurse who was previously approved 
to practice as a nurse practitioner in this state shall: 

(A) meet the nurse practitioner approval 
requirements as stipulated in Subparagraphs 
(a)( 1). (a)(3) - (a)(6) of this Rule; 

(B) complete the appropriate application; 

(C) receive notification of approval; and 

(D) meet the consultation requirements as 
outlined in Rule .0108(d)(3) and (4) of this 
Section. 

(7) If for any reason a nurse practitioner discontinues 



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working within the approved nurse practitioner- 
supervising physician(s) arrangement, the Boards 
shall be notified in writing and the nurse 
practitioner's approval shall automatically terminate 
or be placed on an inactive status until such time as 
a new application is approved in accordance with 
this Subchapter. Special consideration ma> be given 
in an emergency situation. 
(8) Volunteer Approval for Nurse Practitioners. The 
Boards may grant approval to practice in a volunteer 
capacity to a nurse practitioner who has met the 
qualifications as outlined in Rule .0 1 02(a)( I ) - (6) of 
this Section. 

Histoiy Note: Authorin- G.S. 90-18(13). (!4): 90-18.2: 90- 

171.20(7): 90-171. 23(b): 90-171.42: 

Eff. January 1. 1991: 

Paragraph (b)(1) was recodified from 21 NCAC 32M .0004 

Eff.Jamiaiyl.1996: 

Amended Eff. Max L 1999: January I. 1996. 

.0104 REQUIREMENTS FOR APPROVAL OF 
NURSE PRACTITIONER EDUCATIONAL 
PROGRAMS 

(a) A nurse practitioner applicant who completed a nurse 
practitioner educational program prior to December 31, 1999 
shall provide evidence of successful completion of a course of 
formal education which contains a core curriculum including 
400 contact hours of didactic education and 400 contact hours 
of preceptorship or supervised clinical experience. 

( 1 ) The core curriculum shall contain as a minimum the 
following components: 

(A) health assessment and diagnostic reasoning 
including: 

(i) historical data; 
(ii) physical examination data; 
(iii) organization of data base; 

(B) pharmacology; 

(C) pathophysiology; 

(D) clinical management of common health care 
problems and diseases related to: 

(i) respiratory system; 

(ii) cardiovascular system; 
(iii) gastrointestinal system; 
(iv) genitourinary system; 

(v) integumentary system; 
(vi) hematologic and immune systems; 
(vii) endocrine system; 
(viii) musculoskeletal system; 
(ix) infectious diseases; 

(x) nervous system; 

(xi) behavioral, mental health and 
substance abuse problems; 

(E) clinical preventative services including health 
promotion and prevention of disease; 

(F) client education related to Parts (a)( 1 )(D) and 
(E) of this Rule; and 

(G) role development including legal, ethical. 



economical, health policy and 

interdisciplinary collaboration issues. 

(2) Nurse practitioner applicants who may be exempt 

from components of the core curriculum 

requirements listed in Subparagraph (a)(1) of this 

Rule are: 

(A) Any nurse practitioner approved in North 
Carolina prior to January 18. 1981, is 
permanently exempt from the core curriculum 
requirement. 

(B) A nurse practitioner certified by a national 
credential ing body who also provides 
evidence of satisfying Parts (a)( 1 )(A) - (C) of 
this Rule shall be exempt from core 
curriculum requirements in Parts (a)(1)(D) - 
(G) of this Rule. Evidence of satisfying Parts 
(a)(1)(A) - (C) of this Rule shall include, but 
may not be limited to: 

(i) a narrative of course content; and 
(ii) contact hours. 

(C) A nurse practitioner seeking initial approval 
after January 1, 1998 shall be exempt from 
the core curriculum requirements if certified 
as a nurse practitioner in his/her specialty by 
a national credentialing body and when initial 
certification was obtained after January 1, 
1998. 

(D) A nurse practitioner applicant, whose fonnal 
education does not meet all of the stipulations 
in Subparagraph (b) of this Rule. ma\ appeal 
to the Joint Subcommittee on the basis of 
other education and experience. 

(b) Instead of educational program approval, all nurse 
practitioner applicants who are applying for or have received, 
first time approval to practice as a nurse practitioner on or after 
January I. 2000 shall be certified by a national credentialing 
body or be awaiting initial certification by a national 
credentialing body for a period not to exceed 18 months from 
date temporary approval is granted. 

History Note: .Authority G.S. 90-18(14): 90-171.42: 
Eff. January 1. 1991 : 

Recodified from 21 NC.4C 32 M .0005 Eff. January 1. 1996: 
Amended Eff. May f 1999: January I. 1996. 

.0105 ANNUAL RENEWAL 

(a) Each registered nurse who is approved as a nurse 
practitioner in this state shall annualK renew eacii approval 
with the Medical Board no later than 30 days after the nurse 
practitioner's birthday by: 

( 1 ) Verifying current RN licensure; 

(2) Submitting the fee required in Rule .0111 of this 
Subchapter; and 

(3) Completing the renewal form. 

(b) For the nurse practitioner who had first time approval to 
practice after January I, 2000, provide evidence of 
certification or recertitlcation by a national credentialing body. 

(c) If the nurse practitioner has not renewed within 60 days 



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of the nurse practitioner's birthday, the approval to practice as 
a nurse practitioner shall lapse. 

History Note: Authority G.S. 90-6; 90-18(14): 90- 

171.23(b): 

Eff. Januaiy 1 . 1996: 

Amended Eff. May 1 , 1999 

.0108 PRESCRIBING AUTHORITY 

(a) The prescribing stipulations contained in this Rule apply 
to writing prescriptions and ordering the administration of 
medications. 

(b) Prescribing and dispensing stipulations are as follows: 

( 1 ) Drugs and devices that may be prescribed by the 
nurse practitioner in each practice site shall be 
included in the written protocols as outlined in Rule 
.0108(b) of this Section. 

(2) Controlled Substances (Schedules 11, UN, III. IIIN, 
IV, V) defined by the State and Federal Controlled 
Substances Acts may be procured, prescribed or 
ordered as established in written protocols, 
providing all of the following requirements are met: 

(A) the nurse practitioner has an assigned DEA 
number which is entered on each prescription 
for a controlled substance; 

(B) dosage units for schedules 11, UN. Ill and 

II IN are limited to a 30 day supply; and 

(C) the prescription or order for schedules II, UN, 

III and IIIN may not be refilled. 

(3) The nurse practitioner may prescribe a drug not 
included in the site-specific written protocols only as 
follows: 

(A) upon a specific written or verbal order 
obtained from a primary or back-up 
supervising physician before the prescription 
or order is issued by the nurse practitioner; 
and 

(B) the written or verbal order as described in 
Part (b)(3KA) of this Rule shall be entered 
into the patient record w ith a notation that it is 
issued on the specific order of a primary or 
back-up supervising physician and signed by 
the nurse practitioner and the physician. 

(4) Refills may be issued for a period not to exceed one 
year except for schedules II. UN. Ill and lllN 
controlled substances which may not be refilled. 

(5) Each prescription shall be noted on the patient's 
chart and include the following infomiation: 

(A) medication and dosage; 

(B) amount prescribed; 

(C) directions for use; 

(D) number of refills; and 

(E) signature of nurse practitioner. 

(6) The prescribing number assigned by the Medical 
Board to the nurse practitioner must appear on all 
prescriptions issued by the nurse practitioner. 

(7) Prescription Format: 

(A) All prescriptions issued by the nurse 



practitioner shall contain the supervising 

physician(s) name, the name of the patient, 

and the nurse practitioner's name, telephone 

number, and prescribing number. 

(B) The nurse practitioner's assigned DEA 

number shall be written on the prescription 

form when a controlled substance is 

prescribed as defined in Subparagraph (b)(2) 

of this Rule. 

(c) The nurse practitioner may obtain approval to dispense 

the drugs and devices included in the written protocols for 

each practice site from the Board of Pharmacy, and dispense in 

accordance with 21 NCAC 46 .1700. which is hereby 

incorporated by reference including subsequent amendments 

of the referenced materials. 

History Note: Authority G.S. 90-6: 90-18(14): 90-18.2: 90- 

171.23(14): 90-171.42:' 58 Fed Reg. 31.171 (1993) (to be 

codified at 21 C.F.R. 1301): 

Eff. February I. 1991: 

Recodified from 21 NCAC 32M .0006 Eff. Januaiy I. 1996: 

Amended Eff. May 1_^ 1 999: January' I, 1996: September I, 

1994: March 1. 1994. 

SUBCHAPTER 32R - CONTINUING MEDICAL 
EDUCATION (CME) REQUIREMENTS 

SECTION .0100 - CONTINUING MEDICAL 
EDUCATION REQUIREMENTS 

.0102 APPROVED CATEGORIES OF CME 

The following are the approved categories of CME. 

(1) Physician-Initiated CME: 

(a) Practice based self-study; 

(b) Colleague consultations; 

(c) Office based outcomes research; 

(d) Study initiated by patient inquiries; 

(e) Study of community health problems; 

(f) Successful specialty board examination for 
certification or recertification; 

(g) Teaching (professional, patient/public health); 
(h) Mentoring; 

(i) Morbidity and Mortality (M&M) conference; 

(j) Journal clubs; 

(k) Creation of generic patient care pathways and 

guidelines; 
(1) Competency Assessment. 

(2) Educational Provider-Initiated CME: All education 
offered by institutions or organizations accredited b\ 
the Accreditation Council for Continuing Medical 
Education (ACCME) and reciprocating 
organizations or American Osteopathic Association 
(AOA). 

(a) Formal Courses; 

(b) Scientific/clinical presentations, or 
publications; 

(c) Enduring material (Audio- Video); 

(d) Skill development. 



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History: Note: Authority G.S. 90-14/a)ll5): 
Eff. Jam/an- 1, 2000. 

.0103 EXCEPTIONS 

(a) A licensee currently enrolled in an AOA or 
Accreditation Council on Graduate Medical Education. 
(ACGME) accredited graduate medical education program is 
exempt from the requirements of Rule .0101 of this Section. 

(b) A licensee shall have one year of exemption from the 
requirements of Rule .0101 of this Section after having 
received initial licensure. 



History Note: 
Eff. Jamian' 1. 



Authoritx- G.S. 90-14(a){15); 
2000. 



.0104 REPORTING 

At the time of annual registration each Licensee shall report 
on the Board's annual registration form the number of hours of 
practice-relevant CME obtained in compliance with Rule 
.0101 of this Section. CME hours must be documented by 
categories for three consecutive years and may be inspected by 
the Board or its agents. 



History Note: 
Eff. Jamian' 1. 



Authorit\-G.S. 90-!4(a)(15): 
2000. 



SUBCHAPTER 32S - PHYSICIAN ASSISTANT 
REGULATIONS 

SECTION .0100 - PHYSICIAN ASSISTANT 
REGULATIONS 

.0101 DEFINITIONS 

The following definitions apply to this Subchapter: 

( 1 ) "Board" means the North Carolina Medical Board. 

(2) "Physician Assistant" means a person licensed by 
and registered with the Board to perform medical 
acts, tasks, or functions under the supervision of a 
physician licensed by the Board, who performs tasks 
traditionally performed by the physician, and who 
has graduated from a phvsician assistant or surgeon 
assistant program accredited by the Commission on 
Accreditation of Allied Health Education Programs, 
or its predecessor or successor agencies. 

(3) "Physician Assistant License" means the document 
issued by the Board showing approval for the 
physician assistant to perform medical acts, tasks, or 
functions under North Carolina law. 

(4) "Registering" means paying the annual fee and 
providing the information requested by the Board as 
outlined in Rule .0105 of this Section. 

(5) "Supervising Physician" means a physician who is 
licensed by the Board and who is not prohibited by 
the Board from supervising physician assistants. 
The physician may serve as a priman,' supervising 
physician or as a back-up supervising physician. 

(a) The "Primarv' Supervising Physician" is the 
physician who. by signing the application to 



the Board, accepts full responsibilitv' for the 
physician assistant's medical activities and 
professional conduct at all times, whether the 
physician personally is providing supervision 
or the supervision is being provided by a 
Back-up Supervising Physician. The Primary 
Supervising Physician shall assume 
responsibilit> for assuring the Board that the 
physician assistant is qualitled by education 
and training to perform all medical acts 
required of the physician assistant and shall 
assume responsibilitv' for the physician 
assistant's performance in the particular field 
or fields in which the physician assistant is 
expected to perform medical acts, 
(b) The "Back-up Supervising Physician" means 
the physician who, by signing the statement 
required in Rule .0110 of this Section, accepts 
the responsibility, for supervision of the 
physician assistant's activities in the absence 
of the Primarv Supervising Physician. The 
Back-up Supervising Physician is responsible 
for the activities of the physician assistant 
only when providing supervision. 

(6) "Supervising" means overseeing the activities of 
and accepting the responsibility for, the medical 
services rendered by a physician assistant. 

(7) "Volunteer practice" means performance of medical 
acts, tasks, or functions without expectation of any 
form of payment or compensation. 

(8) "Examination" means the Physician Assistant 
National Certii\'ing Examination or another 
examination as approved by the Board. 

HistoiyNote: Authority' G.S. 90-18(13): 90-I8(c)(13): 90- 

18.1: 

Eff Men- 1. 1999. 

.0102 QUALIFICATIONS FOR LICENSE 

Except as otherwise provided in this Subchapter, an 
individual shall obtain a license from the Board before the 
individual may practice as a physician assistant. The Board 
may grant a license as a physician assistant to an applicant who 
has met all the following criteria: 

(1) submits a completed application on forms provided 
by the Board: 

(2) pays the fee established b\' Rule .0121(1) in this 
Section: 

(3) has successfully completed an educational program 
for physician assistants or surgeon assistants 
accredited by the Commission on Accreditation of 
Allied Health Education Programs or its predecessor 
or successor agencies and: if licensed in North 
Carolina after June 1, 1994. has successfully 
completed a licensing examination approved b\ the 
Board: 

(4) certifies that he or she is mentally and phvsicalK 
able to engage safely in practice as a physician 



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APPROVED RULES 



assistant; 

(5) has no license, certificate, or registration as a 
physician assistant currently under discipline, 
revocation, suspension or probation for cause 
resulting from the applicant's practice as a physician 
assistant; 

(6) has good moral character; 

(7) submits to the Board any other information the 
Board deems necessary to evaluate the applicant's 
qualifications; and 

(8) if two years or more have passed since graduation 
from an approved program, the applicant must 
submit documentation of the completion of at least 
100 hours of continuing medication education 
(CME) during the preceding two years. 

History^ Note: A uthority G. S. 90- ] 1 : 90-18(13): 90- 18.1: 
Eff. Max L 1999. 

.0103 TEMPORARY LICENSE 

(a) During the years prior to 2002. the Board may grant a 
temporary license, valid for a period not to exceed one year, to 
an applicant who meets the qualifications for a license except 
that the applicant has not yet passed a licensing examination 
approved by the Board. The Board shall not grant a temporary 
license to an applicant who has twice failed a licensing 
examination approved by the Board. 

(b) A temporary license becomes void at the time the Board 
grants the physician assistant a full license or at the expiration 
date shown on the temporary license. 

(c) A temporary license shall expire 30 days after the 
physician assistant receives notice of non-passing scores on 
the second attempt of taking a licensing examination approved 
by the Board or at the expiration date of the temporary license, 
whichever is sooner. TTie licensee must notify the Board 
within 15 days upon the receipt of scores. 

Histon Note: Authority- G.S. 90-18(13): 90-18. 1: 
Eff. May L 1999. 

.0105 ANNUAL REGISTRATION 

Each person who holds a license as a physician assistant in 
this state shall register his or her Physician Assistant license 
each year no later than 30 days after his or her birthday by; 

( 1 ) completing the Board's registration form; 

(2) submitting the fee required in Rule .0117 of this 
Section. 

History Note: Authority G.S. 90-15: 90-18(13): 90-18. 1: 
Eff Mar L 1999. 

.0106 CONTINUING MEDICAL EDUCATION 

(a) In order to maintain physician assistant licensure, 
documentation must be maintained by the physician assistant 
of 100 hours of continuing medical education (CME) 
completed for every two year period, at least 40 hours of 
which must be American Academy of Physician Assistants 
Category I CME or the equivalent. CME documentation must 



be available for inspection by the Board or an agent of the 
Board upon request. 

(b) Any physician assistant who prescribes controlled 
substances shall complete at least three hours of CME every 
two years on the medical and social effects of the misuse and 
abuse of alcohol, nicotine, prescription drugs (including 
controlled substances), and illicit drugs. 

Histoty Note: Authority G.S. 90-18(13): 90-18. 1: 
Efi: Mar 1. 1999. 

.0109 QUALITY ASSURANCE STANDARDS FOR A 
COLLABORATIVE PRACTICE 
AGREEMENT 

(a) Availabilit>: The priman,' or back-up supervising 
physician(s) and the nurse practitioner shall be continuously 
available to each other for consultation by direct 
communication or telecommunication. 

(b) Written Protocols: 

( 1 ) Written protocols shall be agreed upon and signed 
by both the primary supervising physician and the 
nurse practitioner, and maintained in each practice 
site. 

(2) Written protocols shall be reviewed at least yearly, 
and this review shall be acknowledged by a dated 
signature sheet, signed by both the primary 
supervising physician and the nurse practitioner, 
appended to the written protocol and available for 
inspection by members or agents of either board. 

(3) The written protocols shall include the drugs, 
devices, medical treatment, tests and procedures that 
ma\ be prescribed, ordered and implemented by the 
nurse practitioner consistent with Rule .0107 of this 
Section, and which are appropriate for the diagnosis 
and freatment of the most commonly encountered 
health problems in that practice setting. 

(4) The written protocols shall include a pre-determined 
plan for emergency services. 

(5) The nurse practitioner shall be prepared to 
demonstrate the ability to perform medical acts as 
outlined in the written protocols upon request by 
members or agents of either Board. 

(c) Quality Improvement Process: 

( 1 ) The primary supervising physician and the nurse 
practitioner shall develop a process for the on-going 
review of the care provided in each practice site to 
include a written plan for evaluating the quality of 
care provided for one or more frequentK 
encountered clinical problems. 

(2) This plan shall include a description of the clinical 
problem(s), an evaluation of the current treatment 
interventions, and if needed, a plan for improving 
outcomes within an identified time-frame. 

(3) The quality improvement process shall include 
scheduled meetings between the primary supervising 
physician and the nurse practitioner at least every six 
months. Documentation for each meeting shall: 
(A) identify clinical problems discussed. 



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including progress toward improving 
outcomes as stated in Subparagraph (c)(2) of 
this Rule, and recommendations, if any. for 
changes in treatment plan(s); 

(B) be signed and dated by those who attended; 
and 

(C) be available for review by members or agents 
of either Board for the previous five calendar 
years and be retained by both the nurse 
practitioner and physician. 

(d) Nurse Practitioner-Physician Consultation. The 
following requirements establish the minimum standards for 
consultation between the nurse practitioner/primary or back-up 
supervising physician(s): 

( 1 ) The nurse practitioner with temporary approval shall 
have: 

(A) review and countersigning of notations of 
medical acts by a primarv or back-up 
super\'ising physician within seven days of 
nurse practitioner-patient contact for the first 
six months of collaboration. This time-frame 
includes the period of interim status. 

(B) face-to-face consultation with the primary 
supervising physician on a weekly basis for 
one month after temporary approval is 
achieved and at least monthly throughout the 
period of temporap. approval. 

(2) The nurse practitioner with first time approval to 
practice shall have: 

(A) revie\\ and countersigning of notations of 
medical acts by a primary or back-up 
supervising physician within seven days of 
nurse practitioner-patient contact for the first 
six months of collaborative agreement. This 
time-frame includes the period of interim 
status. 

(B) face-to-face consultation with the primary 
supervising physician on a weekly basis for 
one month after full approval is received and 
at least monthly for a period no less than the 
succeeding five months. 

(3) The nurse practitioner previously approved to 
practice in North Carolina who changes primary- 
supervising physician shall have face-to-face 
consultation with the primary supervising physician 
weekly for one month and then monthlv for the 
succeeding five months. 

(4) Documentation of consultation shall: 

(A) identify clinical issues discussed and actions 
taken; 

(B) be signed and dated by those who attended; 
and 

(C) be available for review by members or agents 
of either Board for the previous five calendar 
>ears and be retained by both the nurse 
practitioner and physician. 

Histon-Note: Aiilhorin- G.S. 9U-6: 90-18(14): 90-18.2: 90- 



171.23(14): 

Ejf. Jamiaiy 1 . 1991: 

Amended Eff. May 1. 1999: Januan- 1. 1996: March 1. 1994. 

.0110 SUPERVISION OF PHYSICIAN ASSISTANTS 

(a) A physician assistant may perform medical acts, tasks, 
or functions only under the supervision of a physician. 
Supervision shall be continuous but, except as otherwise 
provided in these Rules, shall not be construed as requiring the 
physical presence of the supervising physician at the time and 
place that the services are rendered. 

(b) It is the obligation of each team of physician(s) and 
physician assistant(s) to ensure that the physician assistant's 
scope of practice is identified; that delegation of medical tasks 
is appropriate to the skills of the supervising physician(s) as 
well as the physician assistant's level of competence; that the 
relationship of and access to. each supervising physician is 
defined; and that a process for evaluation of the ph\sician 
assistant's performance is established. A statement describing 
these supervisory arrangements in all settings must be signed 
by each supervising physician and the physician assistant and 
shall be kept on file at all practice sites. This statement 
describing supervisory arrangements and instructions for 
prescriptive authority shall be available upon request by the 
Board or its representatives. 

(c) The time interval between the physician assistant's 
contact with the patient and the chart review and 
countersigning by the supervising physician may be a 
maximum of seven days for outpatient (clinic/office) charts. 
Entries by a physician assistant into patient charts of inpatients 
(hospital, long term care institutions) must comply with the 
rules and regulations of the institution; but. at a minimum, the 
initial work up and treatment plan and the discharge summary- 
must be countersigned by the supervising physician within 
seven da\ s of the time of generation of these notes. In the 
acute inpatient setting, the initial work-up. orders, and 
treatment plan must be signed and dated within two working 
days. 

HistO}y Note: A ulhority- G.S. 90-18(1 5): 90- 18.1: 
Eff. Max L 1999. 

.0111 SUPERVISING PHYSICIANS 

(a) A ph\sician wishing to serve as a primary supervising 
physician must: 

( 1 ) notify- the Board of the physician's intent to serve as 
a primary supervising physician for a physician 
assistant; and 

(2) submit a statement to the Board that the physician is 
willing and qualified to exercise supervision of the 
physician assistant in accordance with rules adopted 
by the Board and that the physician will retain 
professional responsibility- for the care rendered by 
the physician assistant within the scope of the 
supervisory arrangements established pursuant to 
Rule .01 10 of this Section. 

(b) A physician wishing to serve as a back-up supervising 
physician must be licensed to practice medicine b\ the Board 



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APPROVED RULES 



and not prohibited by the Board from supervising a physician 
assistant and be approved by the primary supervising physician 
as a person willing and qualified to assume responsibility for 
the care rendered by the physician assistant in the absence of 
the primary supervising physician. An ongoing list of all 
approved back-up supervising physicians, signed and dated by 
each back-up supervising physician, the primary supervising 
physician, and the physician assistant, must be retained as part 
of the inspectable supervisory arrangements statement 
described in Rule .0110 of this Section. 

(c) It is the responsibility of the supervising physicians to 
ensure that the physician assistant has adequate back-up for 
any procedure performed by the physician assistant in any 
practice location (office, home, hospital, etc.). 

History Note: Authority- G.S. 90-18(13): 90-18. 1; 
Eff.Mav l. 1999. 

.0113 VIOLATIONS 

The Board pursuant to G.S. 90-14 may deny, annul, 
suspend, or revoke the license, or other authority to function as 
a physician assistant in this State. The following acts 
constitute violations of G.S. 90-14: 

(1) Failure to function in accordance with the rules of 
this Subchapter or with any provision of G.S. 90-14 
shall constitute unprofessional or dishonorable 
conduct: 

(2) Representing oneself as a physician constitutes 
dishonorable or unethical conduct. 

Histoiy Note: A uthority G. S. 90- 1 4: 90- 1 -1. 2: 
Eff. Max L 1999. 

.0117 FEES 

The Board requires the following fees: 

(1) Physician Assistant License Fee - one hundred and 
fifty dollars ($150.00), except that an applicant for a 
physician assistant limited volunteer license need 
not submit an application fee. 

(2) Annual Registration Fee - seventy-five dollars 
($75.00), e.vcept that any physician assistant who 
holds a limited volunteer license or who submits a 
statement to the Board confirming that the physician 
assistant is currently exclusively engaged in 
volunteer practice and has engaged exclusively in 
volunteer practice during the preceding year shall 
submit a reduced registration fee of twent\'-five 
dollars ($25.00). 

Histoty Note: Authorit^• G.S. 90-12.1: 90-15: 90-18(13): 90- 

18.1; ' 

Eff. Mm 1. 1999. 

CHAPTER 36 - BOARD OF NURSING 

SECTION .0200 - LICENSURE 

.0227 APPROVAL AND PRACTICE PARAMETERS 



FOR NURSE PRACTITIONERS 

(a) Definitions: 

( 1 ) "Medical Board" means the North Carolina Medical 
Board. 

(2) "Board of Nursing" means the Board of Nursing of 
the State of North Carolina. 

(3) "Joint Subcommittee" means the subcommittee 
composed of members of the Board of Nursing and 
Members of the Medical Board to whom 
responsibility is given by G.S. 90-6 and G. S. 90- 
171.23(b)(14) to develop rules to govern the 
performance of medical acts by nurse practitioners 
in North Carolina. 

(4) "Nurse Practitioner or NP" means a currently 
licensed registered nurse approved to perform 
medical acts under an agreement with a licensed 
physician for ongoing supervision, consultation, 
collaboration and evaluation of the medical acts 
performed. Only a registered nurse approved by the 
Medical Board and the Board of Nursing may 
legally identify oneself as a Nurse Practitioner It is 
understood that the nurse practitioner, by virtue of 
RN licensure, is independently accountable for those 
nursing acts which he or she may perform. 

(5) "Nurse Practitioner Applicant" means a registered 
nurse who may function prior to full approval as a 
Nurse Practitioner in accordance with Part (c)(2)(D) 
of this Rule. 

(6) "Supervision" means the physician's function of 
overseeing medical acts performed by the nurse 
practitioner. 

(7) "Collaborative practice agreement" means the 
arrangement for nurse practitioner-physician 
continuous availability to each other for on-going 
supervision, consultation, collaboration, referral and 
evaluation of care provided b\ the nurse 
practitioner. 

(8) "Primary supervising Physician" means the licensed 
physician who, b> signing the nurse practitioner 
application, is held accountable for the on-going 
supervision. consultation, collaboration and 
evaluation of the medical acts performed by the 
nurse practitioner as defined in the site specific 
written protocols. 

(A) The primary supervising physician shall 
assume the responsibility of assuring the 
Boards that the nurse practitioner is qualified 
to perform those medical acts described in the 
site specific written protocols. 

(B) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a primar) supervising physician. 

(C) A physician in a graduate medical education 
program who is also practicing in a non- 
training situation ma> supervise a nurse 
practitioner in the non-training situation if 
fulK licensed 



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(9) "Back-up Supervising Physician" means the 

hcensed physician who. by signing an agreement 
with the nurse practitioner and the primary 
supervising physician(s) shall be held accountable 
for the supervision, consultation, collaboration and 
evaluation of medical acts by the nurse practitioner 
in accordance with the site specific written protocols 
when the Primary Supervising Physician is not 
available. 

(A) The signed and dated agreements for each 
back-up supervising physician(s) shall be 
maintained at each practice site. 

(B) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a back-up supervising physician. 

(C) A physician in a graduate medical education 
program who is also practicing in a 
nontraining situation may be a back-up 
supervising physician to a nurse practitioner 
in the non-training situation if fully licensed 
and has signed an agreement with the nurse 
practitioner and the primary supervising 
physician. 

(10) "Approval" means authorization by the Medical 
Board and the Board of Nursing for a registered 
nurse to practice as a nurse practitioner in 
accordance with this Subchapter 

(11) "Written protocols" means the signed and dated set 
of written practice guidelines maintained at each 
practice site which describe the prescribing 
privileges, treatments, tests and procedures that 
define the scope of the nurse practitioner's medical 
acts in that setting. Clinical practice issues that are 
not covered by the written protocols require nurse 
practitioner/physician consultation, and 
documentation related to the treatment plan. 

(12) "Volunteer practice" means practice without 
expectation of compensation or payment (monetary. 
in kind or otherwise) to the nurse practitioner either 
directly or indirectly. 

(13) "Disaster" means a state of disaster as defined in 
G.S. 166A-4(3) and proclaimed by the Governor, or 
by the General AssembK pursuant to G.S. 166A-6. 

(14) "Interim Status" means the privilege granted b\ the 
Boards to a graduate of an approved nurse 
practitioner education program or a registered nurse 
seeking initial approval in North Carolina with 
limited privileges, as defined in Part (c)(2)(D) of 
this Rule while awaiting final approval to practice as 
a nurse practitioner 

(15) "Temporary Approval" means authorization by the 
Medical Board and the Board of Nursing for a 
registered nurse to practice as a nurse practitioner in 
accordance with this Rule for a period not to exceed 
18 months while awaiting notification of successful 
completion of the national certification examination. 

(16) "National Credentialing Body" means one of the 



following credentialing bodies that offers 
certification and re-certification in the nurse 
practitioner's specialty area of practice; American 
Nurses Credentialing Center (ANCC); American 
Academy of Nurse Practitioners (AANP): National 
Certification Corporation of the Obstetric. 
Gynecologic and Neonatal Nursing Specialties 
(NCC); and the National Certification Board of 
Pediatric Nurse Practitioners and Nurses (PNP/N). 

(b) Scope of Practice. The nurse practitioner shall be 
responsible and accountable for the continuous and 
comprehensive management of a broad range of personal 
health services for which the nurse practitioner shall be 
educationally prepared and for which competency has been 
maintained, with physician supervision and collaboration as 
described in Paragraph (i) of this Rule. These services include 
but are not restricted to: 

(1) promotion and maintenance of health: 

(2) prevention of illness and disability; 

(3) diagnosing, treating and managing acute and chronic 
illnesses; 

(4) guidance and counseling for both individuals and 
families; 

(5) prescribing. administering and dispensing 
therapeutic measures, tests, procedures and drugs; 

(6) planning for situations be>ond the nurse 
practitioner's expertise, and consulting with and 
referring to other health care providers as 
appropriate: and 

(7) evaluating health outcomes. 

(c) Nurse Practitioner Approval. 

(1) Qualifications for nurse practitioner approval. A 
registered nurse shall be approved by the Medical 
Board and the Board of Nursing before the applicant 
may practice as a nurse practitioner. The Boards 
may grant approval to practice as a nurse 
practitioner to an applicant who: 

(A) is currently licensed as a registered nurse by 
the Board of Nursing: 

(B) has successfully completed an approved 
educational program as outlined in Paragraph 
(d) of this Rule; or. as of .lanuan. I. 2000. 
meets the certification requirements set forth 
Subparagraph (d)(3) of this Rule: 

(C) has an unrestricted license to practice as a 
registered nurse and. if applicable, an 
unrestricted approval to practice as a nurse 
practitioner unless the Boards consider such 
condition and agree to approval; 

(D) submits any information deemed necessary to 
evaluate the application; 

(E) has a collaborative practice agreement with a 
primary supervising physicians; and 

(F) pays the appropriate fee. 

(2) Application for nurse practitioner approval. 

(A) Application for nurse practitioner approval 
shall be made upon the appropriate forms and 
shall be submitted jointly by the nurse 



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practitioner and primary supervising 
physician(s). 

(B) Applications for first-time approval in North 
Carolina shall be submitted to the Board of 
Nursing and then approved by both Boards as 
follows: 

(i) the Board of Nursing will verify 

compliance with Parts (c)(1)(A) - (D) 

of this Rule; 
(ii) the Medical Board will verify 

compliance with Parts (c)(1)(D) - (F) 

of this Rule; and 
(iii) the appropriate Board will notify 

applicant of final approval status. 

(C) Applications for approval of changes in 
practice arrangements for a nurse practitioner 
currently approved to practice in North 
Carolina: 

(i) addition or change of primary 
supervising physician shall be 
submitted to the Medical Board; 

(ii) request for change(s) in the scope of 
practice shall be submitted to the Joint 
Subcommittee; and 

(iii) the appropriate Board will notify 
applicant affinal approval status. 

(D) Interim status for nurse practitioner applicant 
may be granted to: a registered nurse who is a 
new graduate of an approved nurse 
practitioner educational program as set forth 
in Paragraph (d) of this Rule: or a registered 
nurse seeking first time approval to practice 
as a nurse practitioner in North Carolina who 
has worked previously as a nurse practitioner 
in another state and who meets the nurse 
practitioner educational requirement as set 
forth in Paragraph (d) of this Rule with the 
following limitations: 

(i) no prescribing privileges; 

(ii) primary or back-up physicians shall be 
continuously available for appropriate 
ongoing supervision, consultation, 
collaboration and countersigning of 
notations of medical acts in all patient 
charts within two working days of 
nurse practitioner applicant-patient 
contact; 
(iii) face-to-face consultation with the 
primary supervising physician shall be 
weekly with documentation of 
consultation consistent with Part 
(i)(4)(D)ofthis Rule; and 

(iv) may not exceed period of si.x months. 

(E) Beginning January 1. 2000, first time 
applicants who meet the qualifications for 
approval, but are awaiting certification from a 
national credentialing body approved by the 
Board of Nursing, may be granted a 



temporary approval to practice as a nurse 
practitioner. Temporary approval is valid for 
a period not to exceed 18 months from the 
date temporary approval is granted or until 
the results of the applicant's certification 
examination are available, whichever comes 
first. 

(F) The registered nurse who was previously 
approved to practice as a nurse practitioner in 
this state shall: 

(i) meet the nurse practitioner approval 
requirements as stipulated in Parts 
(c)(1)(A), (C) -(F) of this Paragraph; 
(ii) complete the appropriate application; 
(iii) receive notification of approval; and 
(iv) meet the consultation requirements as 
outlined in Parts (i)(4)(C) - (D) of this 
Rule. 

(G) If for any reason a nurse practitioner 
discontinues working within the approved 
nurse practitioner-supervising physician(s) 
arrangement, the Boards shall be notified in 
writing and the nurse practitioner's approval 
shall automatically terminate or be placed on 
an inactive status until such time as a new 
application is approved in accordance with 
this Subchapter Special consideration may be 
given in an emergency situation. 

(H) Volunteer Approval for Nurse Practitioners. 
The Boards may grant approval to practice in 
a volunteer capacity to a nurse practitioner 
who has met the qualifications as outlined in 
Parts (c)(1)(A) - (F) and (2)(A) - (G) of this 
Rule 
(d) Requirements for Approval of Nurse Practitioner 
Educational Programs: 

( 1 ) A Nurse Practioner applicant who completed a 
nurse practitioner educational program prior to 
December 31, 1999 shall provide evidence of 
successful completion of a course of formal 
education which contains a core curriculum 
including 400 contact hours of didactic education 
and 400 contact hours of preceptorship or 
supervised clinical experience. 
(A) The core curriculum shall contain as a 
minimum the following components: 
(i) health assessment and diagnostic 
reasoning including: 
(1) historical data; 
(11) physical examination data; 
(111) organization of data base; 
(ii) pharmacology; 
(iii) pathophysiology; 
(iv) clinical management of common health 
care problems and diseases related to: 
(1) respiratory system; 
(11) cardiovascular system; 
(111) gastrointestinal system; 



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(IV) genitourinary system; 
(V) integumentary system; 
(VI) hematologic and immune 

systems; 
(VII) endocrine system; 
(VIII) musculoskeletal system; 
(IX) infectious diseases; 
(X) nervous system; 
(XI) behavioral, mental health and 
substance abuse problems; 
(v) clinical preventative services including 
health promotion and prevention of 
disease; 
(vi) client education related to Parts 

(d)(2)(A)(iv) and (v) of this Rule; and 
(vii) role development including legal, 
ethical, economical, health policy and 
interdisciplinary collaboration issues. 
(B) Nurse practitioner applicants who may be 
exempt from components of the core 
curriculum requirements listed in Part 
(d)(2)(A) of this Rule are: 
(i) Any nurse practitioner approved in 
North Carolina prior to January 18, 
1981, is permanently exempt from the 
core curriculum requirement, 
(ii) A nurse practitioner certified by a 
national credentialing body who also 
provides evidence of satisfying Parts 
(d)(2)(A)(i) - (iii) of this Rule shall be 
exempt from core curriculum 
requirements in Parts (d)(2)(A)(iv) - 
(vii) of this Rule. Evidence of 
satisfying Parts (d)(2)(A)(i) - (iii) of 
this Rule shall include, but may not be 
limited to: 
(I) a narrative of course content; 

and 

(II) contact hours. 

(iii) A nurse practitioner seeking initial 

approval after January 1. 1998 shall be 

exempt from the core curriculum 

requirements if certified as a nurse 

practitioner in his/her specialty by a 

national credentialing body when 

initial certification was obtained after 

January 1, 1998. 

(iv) A nurse practitioner applicant, whose 

formal education does not meet all of 

the stipulations in Subparagraph (d)(2) 

of this Rule, may appeal to the Joint 

Subcommittee on the basis of other 

education and experience. 

(2) Instead of educational program approval, all nurse 

practitioner applicants who are applying for or have 

received, first time approval to practice as a nurse 

practitioner on or after January I. 2000 shall be 

certified by a national credentialing body approved 



by the Board of Nursing or be awaiting initial 
certification by a national credentialing body 
approved by the Board of Nursing for a period not 
to exceed 18 months from date temporan, approval 
is granted. 

(e) Annual Renewal. 

( 1 ) Each registered nurse who is approved as a nurse 
practitioner in this state shall annually renew each 
approval with the Medical Board no later than 30 
days after the nurse practitioner's birthday by; 

(A) Verifying current RN licensure; 

(B) Submitting the fee required in Paragraph (1) 
of this Rule; and 

(C) Completing the renewal form. 

(2) For the nurse practitioner who had first time 
approval to practice after January 1 , 2000, provide 
evidence of certification or recertification by a 
national credentialing body. 

(3) If the nurse practitioner has not renewed within 60 
days of the nurse practitioner's birthday, the 
approval to practice as a nurse practitioner will 
lapse. 

(f) Continuing Education (CE). In order to maintain nurse 
practitioner approval to practice beginning no sooner than two 
years after initial approval has been granted, the nurse 
practitioner shall earn 30 hours of continuing education every 
two years. At least three hours of continuing education every 
two years shall be the study of the medical and social effects 
of substance abuse including abuse of prescription drugs, 
controlled substances, and illicit drugs. Continuing Education 
hours are those hours for which approval has been granted by 
the American Nurses Credentialing Center (ANCC) or 
Accreditation Council on Continuing Medical Education 
(ACCME) or other national credentialing bodies. 
Documentation shall be maintained by the nurse practitioner at 
each practice site and made available upon request to either 
Board. 

(g) Inactive Status. 

(1) Any nurse practitioner who wishes to place his or 
her approval on an inactive status may notify' the 
Boards by completing the form supplied by the 
Boards; 

(2) The registered nurse with inactive nurse practitioner 
status shall not practice as a nurse practitioner; 

(3) The registered nurse with inactive nurse practitioner 
status who reapplies for approval to practice shall be 
required to meet the qualifications for approval as 
stipulated in Parts (c)( 1 )( A), (c)(1)(C) - (F) and Part 
(c)(2)(A) of this Rule. 

(h) Prescribing Authorify. 

(1) the prescribing stipulations contained in this 
Paragraph apply to writing prescriptions and 
ordering the administration of medications; 

(2) Prescribing and dispensing stipulations are as 
follows: 

(A) Drugs and devices that may be prescribed by 
the nurse practitioner in each practice site 
shall be included in the written protocols as 



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1465 



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outlined in Paragraph (i). Subparagraph (2) of 
this Rule. 

(B) Controlled Substances (Schedules 2, 2N, 3. 
3N. 4. 5) defined by the State and Federal 
Controlled Substances Acts may be procured, 
prescribed or ordered as established in written 
protocols, providing all of the following 
requirements are met: 

(i) the nurse practitioner has an assigned 
DEA number which is entered on each 
prescription for a controlled substance: 
(ii) dosage units for schedules 2, 2N. 3 and 
3N are limited to a 30 day supply: and 
(iii) the prescription or order for schedules 
2, 2N. 3 and 3N may not be refilled. 

(C) The nurse practitioner may prescribe a drug 
not included in the site-specific written 
protocols only as follows: 

(i) upon a specific written or verbal order 
obtained from a primary or back-up 
supervising physician before the 
prescription or order is issued by the 
nurse practitioner; and 
(ii) the verbal or written order as described 
in Subpart (h)(2)(C)(i) of this Rule 
shall be entered into the patient record 
with a notation that it is issued on the 
specific order of a primary or back-up 
supervising physician and signed by 
the nurse practitioner and the 
physician. 

(D) Refills may be issued for a period not to 
exceed one year except for schedules 2, 2N, 3 
and 3N controlled substances which may not 
be refilled. 

(E) Each prescription shall be noted on the 
patient's chart and include the following 
information: 

(i) medication and dosage; 
(ii) amount prescribed; 
(iii) directions for use; 
(i\) number of refills; and 
(v) signature of nurse practitioner. 

(F) The prescribing number assigned by the 
Medical Board to the nurse practitioner shall 
appear on all prescriptions issued by the nurse 
practitioner. 

(G) Prescription Format: 

(i) all prescriptions issued by the nurse 
practitioner shall contain the 
supervising physician(s) name, the 
name of the patient, and the nurse 
practitioner's name, telephone number, 
and prescribing number; 
(ii) the nurse practitioner's assigned DEA 
number shall be written on the 
prescription form when a controlled 
substance is prescribed as defined in 



Paragraph (h) Part (B) of this Rule; 
and 
(3) The nurse practitioner may obtain approval to 
dispense the drugs and devices included in the 
written protocols for each practice site from the 
Board of Pharmacy, and dispense in accordance 
with 21 NCAC 46 .1700. which is hereby 
incorporated by reference including subsequent 
amendments of the referenced materials, 
(i) Quality Assurance standards for a Collaborative Practice 
Agreement. 

(1) Availability: The primary or back-up supervising 
physician(s) and the nurse practitioner shall be 
continuously available to each other for consultation 
by direct communication or telecommunication. 

(2) Written Protocols: 

(A) Written protocols shall be agreed upon and 
signed by both the primary supervising 
physician and the nurse practitioner, and 
maintained in each practice site. 

(B) Written protocols shall be reviewed at least 
yearly, and this review shall be acknowledged 
by a dated signature sheet, signed by both the 
primary supervising physician and the nurse 
practitioner, appended to the written protocol 
and available for inspection by members or 
agents of either board. 

(C) The written protocols shall include the drugs, 
devices, medical treatment, tests and 
procedures that may be prescribed, ordered 
and implemented by the nurse practitioner 
consistent with Paragraph (h) of this Rule, 
and which are appropriate for the diagnosis 
and treatment of the most commonly 
encountered health problems in that practice 
setting. 

(D) The written protocols shall include a pre- 
determined plan for emergency services. 

(E) The nurse practitioner shall be prepared to 
demonstrate the ability to perform medical 
acts as outlined in the written protocols upon 
request by members or agents of either Board. 

(3) Quality' Improvement Process. 

(A) The primary supervising physician and the 
nurse practitioner shall develop a process for 
the on-going review of the care provided in 
each practice site to include a written plan for 
evaluating the quality of care provided for 
one or more frequently encountered clinical 
problems; and 

(B) This plan shall include a description of the 
clinical problem(s). an evaluation of the 
current treatment interventions, and if needed, 
a plan for improving outcomes within an 
identified time-frame; 

(C) The quality improvement process shall 
include scheduled meetings between the 
primary supervising physician and the nurse 



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13:17 



APPROVED RULES 



> 



practitioner at least every six months. 

Documentation for each meeting shall: 

(i) identify' clinical problems discussed, 

including progress toward improving 

outcomes as stated in Part (i)(3)(B) of 

this Rule, and recommendations, if 

any, for changes in treatment plan{s); 

(ii) be signed and dated by those who 

attended; and 
(iii) be available for review by members or 
agents of either Board for the previous 
five calendar years and be retained by 
both the nurse practitioner and 
physician. 
(4) Nurse Practitioner-Physician Consultation. The 
following requirements establish the minimum 
standards for consultation between the nurse 
practitioner/primary or back-up supervising 
physician(s): 

(A) The nurse practitioner with temporary 
approval shall have: 

(i) review and countersigning of notations 
of medical acts by a primary or back- 
up supervising physician within seven 
days of nurse practitioner-patient 
contact for the first six months of 
collaborative agreement. This time- 
frame includes the period of interim 
status. 

(ii) face-to-face consultation with the 
primary supervising physician on a 
weekly basis for one month after 
temporary' approval is achieved and at 
least monthly throughout the period of 
temporary approval. 

(B) The nurse practitioner with first time approval 
to practice shall have: 

(i) review and countersigning of notations 
of medical acts by a primary or back- 
up supervising physician within seven 
days of nurse practitioner-patient 
contact for the first six months of 
collaborative agreement. This time- 
frame includes the period of interim 
status. 

(ii) face-to-face consultation with the 
primary supervising physician on a 
weekly basis for one month after full 
approval is received and at least 
monthl) for a period no less than the 
succeeding five months. 

(C) The nurse practitioner previously approved to 
practice in North Carolina who changes 
primary supervising physician shall have 
face-to-face consultation with the primary 
supervising physician weekly for one month 
and then monthly for the succeeding five 
months. 



(D) Documentation of consultation shall: 

(i) identify clinical issues discussed and 

actions taken; 
(ii) be signed and dated by those who 

attended; and 
(iii) be available for review by members or 
agents of either Board for the previous 
five calendar years and be retained by 
both the nurse practitioner and 
physician, 
(j) Method of Identification. The nurse practitioner shall 
wear an appropriate name tag spelling out the words "Nurse 
Practitioner." 

(k) Disciplinary Action. The approval of a nurse 
practitioner may be restricted, denied or terminated by the 
Medical Board and the registered nurse license may be 
restricted, denied, or terminated by the Board of Nursing, if 
after due notice and hearing in accordance with provisions of 
Article 3 A of G.S. 1 506, the appropriate Board shall find one 
or more of the following: 

(1) that the nurse practitioner has held himself or herself 
out or permitted another to represent the nurse 
practitioner as a licensed physician; 

(2) that the nurse practitioner has engaged or attempted 
to engage in the performance of medical acts other 
than according to the written protocols and 
collaborative practice agreement; 

(3) that the nurse practitioner has been convicted in any 
court of a criminal offense; 

(4) that the nurse practitioner is adjudicated mentally 
incompetent or that the nurse practitioner's mental 
or physical condition renders the nurse practitioner 
unable to safely function as a nurse practitioner; or 

(5) that the nurse practitioner has failed to comply with 
any of the provisions of this Rule. 

(I) Fees: 

(1) An application fee of one hundred dollars ($100.00) 
shall be paid at the time of initial application for 
approval and each subsequent application for 
approval to practice. All initial, subsequent and 
volunteer application fees shall be equally divided 
between the Board of Nursing and the Medical 
Board. No other fees are shared. Application fee 
shall be twenty dollars ($20.00) for volunteer 
approval. 

(2) The fee for annual renewal of approval shall be fifty 
dollars ($50.00). 

(3) The fee for annual renewal of volunteer approval, 
shall be ten dollars ($10.00). 

(4) No portion of any fee in this Rule is refundable, 
(m) Practice During a Disaster. A nurse practitioner 

approved to practice in this State or another state is authorized 
to perform medical acts, tasks, or functions as a nurse 
practitioner under the supervision of a physician licensed to 
practice medicine in North Carolina during a disaster with a 
county in which a state of disaster has been declared or 
counties contiguous to a county in which a state of disaster has 
been declared. The nurse practitioner shall notify the Boards 



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1467 



APPROVED RULES 



in writing of the names, practice locations and telephone 
numbers for the nurse practitioner and each primary 
supervising physician within 15 days of the first performance 
of medical acts, tasks, or functions as a nurse practitioner 
during the disaster. Teams of physician(s) and nurse 
practitioner(s) practicing pursuant to this Rule shall not be 
required to maintain on-site documentation describing 
supervisory arrangements and instructions for prescriptive 
authority as otherwise required pursuant to Paragraphs (h) and 
(i) of this Rule. 

HistoiyNole: Authority G.S. 90-6: 90-18(c)(I3).(N): 90- 
18.2: '90-171.20(4): 90-171.20(7): 90-1 7 1.23(b): 90-171.36: 
90-171.37:90-171.42: 
Eff. January' 1 . 1996: 
Amended Eff. Ma\- 1 , 1999. 

CHAPTER 46 - BOARD OF PHARMACY 

SECTION .1300 - GENERAL DEFINITIONS 

.1317 DEFINITIONS 

The definitions of various terms used in this Chapter are 
found in G.S. 90, Article 4A, and as follows: 

( 1 ) Ambulation Assistance Equipment. Devices that aid 
in walking, excluding canes, crutches, and walkers. 

(2) Approved School or College of Pharmacy. A school 
or college of phamiacy accredited by the American 
Council on Pharmaceutical Education, or a foreign 
school with a professional pharmacy degree program 
of at least five years approved by the Board. 

(3) Auxiliary Drug Inventory. A secure, segregated, 
supplementary source for drugs to be used solely for 
the purpose of providing adequate drug availability 
when the pharmacy is closed or the pharmacist is 
unavailable. 

(4) Board. As defined in G.S. 90-85.3(b). 

(5) Consultant Pharmacist. A licensed pharmacist who, 
in collaboration with the supervising physician and 
nurse practitioner or assistant to the physician, 
develops a retrospective drug utilization review 
program which: 

(a) reviews the appropriateness of the choice of 
medication(s) for the patient and the patient's 
therapeutic regimen, including choice of 
medication, dose, frequency, and route of 
administration; 

(b) identifies and resolves therapeutic duplication 
in the patient's medication regimen; and 

(c) considers patient-specific medication 
contraindications. 

The consultant pharmacist holds himself available 
for consultation in person, by telephone, or by other 
means of direct communication at all times when 
drugs are dispensed. 

(6) Diagnostic equipment. Equipment used to record 
physiological information while a person goes about 
normal daily living or while asleep in order to 



document a disease process. EPTs, thermometers. 
and cholesterol equipment are not included as 
diagnostic equipment. 

(7) Drug review or Pharmaceutical care assessment. An 
onsite review of a patient's or resident's record by a 
licensed pharmacist that involves interpretation and 
evaluation of the drug therapy and other 
pharmaceutical care services to achieve intended 
medication outcomes and minimize negative effects 
of drug therapy. 

(8) Duplicate as used in G.S. 90-85.24. Any license, 
permit, or registration issued or reissued by the 
Board which is identical to a previously issued 
license, permit, or registration, including a permit 
reissued due to a change in pharmacist-manager. 

(9) Emergency Drugs. Those drugs whose prompt use 
and immediate availability are generally regarded by 
physicians as essential in the proper treatment of 
unforeseen adverse changes in a patient's health or 
well-being. 

(10) Executive Director. The Secretary-Treasurer and 
Executive Director of the Board. 

(11) Graduate of an Approved School or College of 
Pharmacy. A person who has received an 
undergraduate professional degree in pharmacy from 
an approved school or college of pharmacy, or a 
person who has graduated from a foreign 
professional school of pharmacy and has 
successfully completed the Foreign Pharmacy 
Graduate Equivalency Examination offered by the 
National Association of Boards of Pharmacy and the 
Test of English as a Foreign Language. 

(12) HMES. Home medical equipment supplier. 

(13) Health Care Facility Pharmacy. A pharmacy 
maintained in a hospital, clinic, nursing home, rest 
home, sanitarium, non-federal governmental 
institution, industrial health facility, or other like 
health service under the supervision of a pharmacist; 
or the central area in a hospital, clinic, or other 
health care facility where drugs are procured, stored, 
processed, or issued, or where pharmaceutical 
services are performed. 

(14) Indulgence in the Use of Drugs. The use of narcotic 
drugs or other drugs affecting the central nervous 
system or the use of intoxicating beverages to an 
extent as to deprive the user of reasonable 
self-control or the ability to exercise such judgment 
as might reasonabK be expected of an average 
prudent person. 

(15) Limited Service Pharmacy Permit. A pharmacy 
permit issued by the Board to an applicant that 
wishes to render in an institutional setting 
pharmaceutical services not limited to scope and 
kind but to time and conditions under which such 
services are rendered. 

(16) Medication Administration Record. A record of 
drugs administered to a patient. 

(17) Medication Order. An order for a prescription drug 



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or other medication or a device for a patient from a 
person authorized by law to prescribe medications. 

(18) Mobility equipment. Devices that aid a person in 
self-movement, other than walking, including 
manual or power wheelchairs and scooters. 

( 1 9) Oxygen and respiratory care equipment. Equipment (31) 
or devices used to administer oxygen or other legend 
drugs, maintain viable airways or monitor cardio- (32) 
respiratory conditions or events, including, but not 
limited to, compressed medical gases; oxygen 
concentrators; liquid oxygen; nebulizers; 
compressors; aerosol therapy devices; portable 
suction machines; nasal continuous positive airway 
pressure (CPAP) machines; Bi-phasic positive 
pressure devices (BiPAP); infant monitors, such as 
apnea monitors and cardio-respiratory monitors; 
positive and negative pressure mechanical 
ventilators; and pulse oximeters. 

(20) Patient Medication Profile. A list of all prescribed 
medications for a patient. 

(21) Pharmacist. Any person within the definition set (1) 
forth in G.S. 90-85. 3(p), including any druggist. 

(22) Pharmacist-Manager The person who accepts 
responsibility for the operation of a pharmacy in 
conformance with all statutes and regulations 
pertinent to the practice of pharmacy and 
distribution of drugs by signing the permit 
application, its renewal or addenda thereto. 

(23) Pharmacy. Any place within the definition set forth (2) 
in G.S. 90-85. 3(q), including any apothecary or 
drugstore. 

(24) Pharmacy Intern. Any person who is duly registered 
with the Board under the internship program of the 
Board to acquire pharmacy experience or enrolled in 
approved academic internship programs. A 
pharmacy intern working under a pharmacist 
preceptor or supervising pharmacist may, while 
under supervision, perform all acts constituting the 
practice of pharmacy. 

Place of residence. Any place used as an 
individual's temporary or permanent home. 
President. The President of the Board. 

Rehabilitation environmental control equipment. (3) 

Equipment or devices which permit a person with 
disabilities to control his or her immediate 
surroundings. 

Rehabilitation Services. Services and equipment 
required to maintain or improve functional status 
and general health as prescribed by the physician 
which are uniquely specified for each individual's 
lifestyle. The people involved in this process include 
the patient, caregiver, physician, therapist, 
rehabilitation equipment supplier and others who 
impact on the individual's life style and endeavors. 

(29) Signature. A v\iitten or electronic signature or 
computerized identification code. 

(30) Two Years College Work. Attendance at an (4) 
accredited college for two academic years of not less 



(25) 

(26) 
(27) 



(28) 



than eight and one-half months each and the 

completion of work for credit leading to a 

baccalaureate degree or its equivalent and that 

would permit the student to advance to the next 

class. 

Undergraduate Professional Degree in Pharmacy. A 

B.S. or Pharm. D. degree. 

Vice-President. The Vice-President of the Board. 

Histoiy Note: Authority G.S. 90-85.3: 90-85.6: 90-85.8: 
90-85.13: 90-85.14: 90-85.15: 90-85.21: 90-85.38: 90-85.40: 
Eff'.Mayl. 1989: 

Amended Eff. April 1 . 1999: May /, 1997: September 1. 1995; 
September 1. 1993: October 1. 1990: January I. 1990. 

SECTION .1400 - HOSPITALS: OTHER 
HEALTH FACILITIES 

.1414 DRUG DISTRIBUTION AND CONTROL 

(a) MEDICATION ORDERS. 

Medications shall be dispensed from a health care 
facility pharmacy only upon receipt of a medication 
order. A mechanism shall be in place to verify the 
authenticity of the medication order. Oral orders 
shall be put in writing immediately and signed 
within the time frame established by regulatory 
agencies and health care facility policies and 
procedures. 

All medication orders shall be received and 
reviewed by a pharmacist and, at a minimum, shall 
contain the; 

(A) patient's name, location and other necessary 
identifying information such as history or 
medical records number; 
medication name, strength, dosage form, 
route of and directions for administration. In 
the absence of a facility policy on 
interpretation of routes of administration, the 
route of administration must be specified; 
date the order was written; and 
prescriber's signature (may include electronic 
signature or verification). 
Medication orders for patients requiring continuous 
drug therap>' shall be entered into a patient 
medication profile, either manual or automated. The 
medication profile shall, at a minimum, contain the: 
(A) patient's name, location and important clinical 
data such as age, height, weight, sex. and 
allergies; 

medication name, strength, dosage fomi, 
route of and directions for administration; 
medication start date; 
medication discontinuance date; and 
identification of pharmacist responsible for or 
verifying technician entry of the medication 
order. 
Abbreviations used in medication orders shall be 
agreed to. jointly adopted, and published by the 



(B) 



(C) 
(D) 



(B) 

(C) 
(D) 
(E) 



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1469 



APPROVED RULES 



medical, nursing, pharmacy, and medical records 
staff of the health care facility. 

(5) Medication orders shall be reviewed and 
discontinued or suspended, if appropriate, when the 
patient is transferred to the delivery room, operating 
room, or is admitted from another facility. A 
method to protect the patient from indefinite, 
open-ended drug orders must be provided. The 
prescriber shall be notified in a timely manner that 
the order shall be stopped before such action takes 
place by one or more of the following: 

(A) the routine monitoring of patient's drug 
therapy by a pharmacist; 

(B) a health care facility-approved, drug class- 
specific, automatic stop order policy covering 
those drug orders not speciiying a number of 
doses or duration of therapy; or 

(C) a health care facility-approved automatic 
cancellation of all drug orders after a 
predetermined time interval unless rewritten 
by the prescriber. 

(6) Health care facilities which credential practitioners' 
for prescribing privileges within the facility shall 
provide the health care facility pharmacy with 
credentialing information annually or immediately 
upon discharge or when privileges are suspended or 
terminated. 

(b) DEVICES. Devices shall be dispensed in accordance 
with Section .2600 of this Chapter. 

(c) DISPENSING. In health care facilities with 24 hour 
pharmacy services, all dispensing shall be done by a 
pharmacist. In health care facilities without 24 hour phannacy 
services. Rule .1413 of this Section shall apply in the absence 
of a pharmacist. 

(d) LABELING. 

(1) All drugs dispensed from within a health care 
facility pharmacy shall be labeled and identified up 
to the point of administration; 

(2) Whenever a drug is added to a parenteral admixture, 
it shall be labeled with a distinctive supplementary 
label indicating the name and amount of the drug 
added, expiration date, and expiration time, if 
applicable. For admixtures prepared outside the 
pharmacy, the pharmacist-manager shall develop 
policies and procedures for preparation and labeling. 

(e) PARENTERAL MEDICATIONS. The dispensing of 
parenteral medications shall be done in accordance with 
Section .2800 of this Chapter - Sterile Parenteral 
Pharmaceuticals. 

(f) PATIENT CARE UNIT MEDICATION 
INVENTORIES. This Paragraph does not apply to nursing 
facilities, assisted living facilities, and adult care homes. 

(1) Non-controlled drugs may be stocked in quantities 
limited to not more than five dosage units per drug 
on a health care facility patient care unit when 
immediate availability is deemed essential to the 
patient's health and well-being. The pharmacist- 
manager shall develop an approved drug list for 



each health care facility location. Drugs shall be 
stored in a manner that prevents unauthorized access 
and shall only be administered to a patient of the 
health care facility pursuant to a medication order. 

(2) All controlled substances stocked within a health 
care facility that are not located within the facility's 
phannacy or automated dispensing device must be 
accompanied by a disposition form issued from the 
pharmacy. This document shall at a minimum 
contain: 

(A) the product name, strength, dosage form, and 
quantity supplied; 

(B) the date transferred to the patient care unit by 
the pharmacy; 

(C) the name of the pharmacy representative 
supplying, and the patient care unit 
representative receiving the drug; 

(D) the date, time, and amount of the drug 
removed from the patient care unit stock for 
administration; and 

(E) the patient name and identification of the 
person acquiring the product. 

(3) Exceptions to this Paragraph shall be made for use 
of automated dispensing devices provided that these 
devices meet all applicable rules for controlled 
substances contained therein. 

(4) When a dose of a controlled substance has been 
prepared for a patient but not used (i.e., refused, 
order canceled, or contaminated), it may be 
destroyed at the patient care unit. The destruction 
must be wimessed by a health care provider, such as 
a pharmacist, registered nurse, or licensed practical 
nurse. Details of the event, along with the 
identification of the two who affected the 
destruction, shall be documented. If such record is 
separate from the disposition form, it shall be 
maintained uniformly with the corresponding 
disposition form. 

(g) ANCILLARY DRUG CABINET INVENTORIES. 
(This Paragraph does not apply to nursing facilities, assisted 
living facilities, and adult care homes.) Drugs that are 
routinely prescribed by the medical staff in a health care 
facility shall be maintained in establishing and maintaining 
quantities limited to not more than five dosage units per drug 
as a supplementary inventory for use only when the pharmac) 
is closed. The pharmacist-manager shall, in connection with 
the appropriate committee of the health care facility, develop 
listings of those drugs to be included in such inventories. The 
pharmacist-manager shall, at a minimum, assure that: 

(1) access to such drug inventories is by locked 
cabinet(s) or other enclosure(s) constructed and 
secured to deny access to unauthorized persons; 

(2) only authorized personnel, as indicated by written 
policies and procedures, shall obtain access to the 
drug inventories; 

(3) only pre-packaged drugs are available therein, in 
amounts sufficient for immediate therapeutic 
requirements. Drugs shall be properly labeled, with 



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13:17 



APPROVED RULES 



drug name, strength, lot number and expiration date. 
Whenever access to such inventory is gained, a copy 
of the record of withdrawal and a copy of the written 
order for new drug orders shall be provided to the 
pharmacy. The record of withdrawal shall contain 
the following: 

(A) the date of removal of the drug; 

(B) the name, strength, dosage form, and quantity 
of drug removed; 

(C) the name of the patient for whom the drug 
was ordered; 

(D) the name or identification code of the 
authorized personnel removing the drug from 
inventory; 

(4) all drugs are reviewed no less often than quarterly to 
ensure their purity, potency, and integrity ; and 

(5) written policies and procedures are established to 
implement the requirements of this Rule. 

(h) AUTOMATED DISPENSING OR DRUG SUPPLY 
DEVICES. Automated Dispensing or Drug Supply Devices 
such as but not limited to Pyxis machines may be utilized in 
health care facility pharmacies and where a pharmacy permit 
exists provided that the pharmacist-manager has developed 
procedures to assure safe and effective use of medications in 
accordance with 2 1 NCAC 46 . 1 8 1 4. 

(i) EMERGENCY KITS. (This Paragraph does not apply to 
adult care homes or assisted living facilities) Drugs and 
devices may be provided in emergency kits for use by 
authorized personnel provided that: 

(1) the pharmacist-manager, or designee, and the 
medical staff of the health care facility jointly 
determine the drugs and devices, by identity and 
quantity, to be included in the kit. Drugs and 
devices included in the kit shall be limited to those 
for emergency use only and are not to be used for 
any other purpose. The pharmacist-manager shall, 
in conjunction with the medical staff of the health 
care facilit>. develop and implement written policies 
and procedures to ensure compliance with the 
provisions of this Section; 

(2) the emergency kit contains those drugs and devices 
which may be required to meet the immediate 
therapeutic needs of patients and which are not 
available from any other authorized source in 
sufficient time to prevent prolonged discomfort or 
risk of hann to patients; 

(3) the emergency kit shall be stored in a secure, readily 
available location under the supervision of the 
nursing staff and sealed with a non-reusable, easily 
removable seal to prevent unauthorized access, and 
to ensure a proper environment for preservation of 
the drugs and devices within them. Policies and 
procedures shall be established to ensure the 
integrity of the kit at all times; 

(4) the exterior of the emergency kit shall be labeled so 
as to clearly and unmistakably indicate that it is an 
emergency drug kit and is for use in emergencies 
only. In addition, a listing of the drugs and devices 



contained therein, including name, strength, and 
quantity of each drug or device shall be attached. 
Each emergency kit shall be inspected by a 
pharmacist or his designee every 30 days (90 days 
for long-term care facilities) to check for expiration 
dates and the integrity of the seal; 

(5) all drugs and devices contained within the 
emergency kit shall be labeled, if applicable, with, at 
a minimum, the name, strength, lot number, 
manufacturer, and expiration date; 

(6) drugs and devices shall be removed from the 
emergency kit for administration to a patient only 
pursuant to a valid physician's order, by personnel 
authorized by the facility; 

(7) whenever an emergency kit is opened, the phannacy 
shall be notified. The pharmacist-manager or 
designee shall re-stock, re-seal, and return the kit to 
the unit within a reasonable length of time in order 
to prevent risk of harm to patients. The emergency 
drug kits shall be checked by an authorized person 
in accordance with written policies and procedures 
of the health care facility. In the event the kit is 
opened in an unauthorized manner, the pharmacy 
and other personnel designated by the pharmacist- 
manager of the facility shall be notified; and 

(8) CONTROLLED DRUG EMERGENCY KITS. 
Emergency drugs that are controlled substances 
must be stored in compliance with 10 NCAC 45G 
.0410. 

(]) RECORDS. 

(1) The pharmacist-manager shall, in addition to the 
requirements for preserving prescription orders as 
set forth in G.S. 90-85.26, develop a system of daily 
accountability for medication compounding and 
dispensing that shall permit the identification of the 
responsible pharmacist. Readily retrievable records 
of accountability shall be maintained for at least 30 
days. At a minimum, this system shall identify all 
personnel who perform these activities and the 
pharmacist responsible for: 

(A) interpretation and appropriateness of new 
medication orders; 

(B) profile entry of new medication orders; 

(C) dispensing of new medication orders 
including stat doses; 

(D) daily cart fills; 

(E) intravenous admixtures; 

(F) compounded medications; and 

(G) periodically assessing the quality of pharmacy 
procedures for preparation and release of 
drugs and devices for replenishment of floor 
stock, ancillary drug supplies, and automated 
dispensing devices in locations outside the 
pharmacy. 

(2) Medication errors resulting from the administration 
of an incorrect medication or dose shall be 
documented and reported to the pharmacist- 
manager Documentation shall include pertinent 



13:17 



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March /. 1999 



1471 



APPROVED RULES 



chronological information and appropriate health 
care facility forms including the identity of 
individual(s) responsible. These documents shall be 
archived in a readily retrievable manner, open for 
inspection, for a period of three years. 

(3) Upon notification of information that reasonably 
suggests that there is a probability a prescription 
drug or device dispensed from a location holding a 
permit has caused or contributed to the death of a 
patient (see 21 NCAC 46 .2502(k) 
RESPONSIBILITY OF PHARMACIST- 
MANAGER), the pharmacist-manager shall retain 
all documents, labels, vial, supplies, substances and 
internal investigative reports relating to the event. 
All such items shall be maintained by the health care 
facility, accessible to the pharmacist-manager, and 
open to the Board of Pharmacy. 

(4) The pharmacist-manager shall maintain records of 
ordering, receiving, dispensing or transfer of 
controlled substances. These records shall include, 
but are not limited to the following: 

(A) Invoices or other such documents verifying 
the ordering and receipt of controlled 
substances; 

(B) Perpetual inventories of controlled substances 
transferred to patient care units and other sites 
as allowed by this Rule (i.e., automated 
dispensing devices, emergency kits. etc.). 
These inventories shall record the transfer 
date: location transferred to; the identity' of 
the drug; strength, dosage form, and quantity 
transferred: transferring pharmacist's name; 

(C) Disposition records required by Paragraph (f) 
of this Rule; 

(D) A record of controlled substances dispensed 
directly to the patient to include the patient's 
name; date dispensed; dispensing 
pharmacist's name; name, strength, dosage 
form, and quantity of the drug dispensed. 
The records shall also document drugs 
returned and credited; and 

(E) A perpetual inventory shall be maintained on 
all controlled substances awaiting destruction 
or return to a vendor. 

(5) Automated systems may be used to collect and store 
information required by Subparagraph (j)(4) of this 
Rule provided such system allows for the immediate 
retrieval (via CRT display and hard-copy printout) 
of original medication order information and 
dispensing history consistent with criteria cited in 21 
CFR .1306 and 10 NCAC 46 .2304. 

(6) With the exception of Subparagraph (j)(l) of this 
Rule, all records required by this Section shall be 
maintained for a period of three years. Such records 
shall be archived in a uniform manner, retrievable to 
the pharmacy within 48 hours, and open for review, 
copying, or seizure by a member or designated 
employee of the Board. 



History Note: Author in: G.S. 90-85.6: 90-85.21: 90-85.32: 

90-85.33: 

Eff. May 1. 1997: 

.Amended Eff. April L 1999: August 1, 1998. 

SECTION .1600 - LICENSES AND PERMITS 

.1612 REINSTATEMENT OF LICENSES AND 
PERMITS 

All licenses renewed after March 1 are subject to the 
maximum original fee set out in G.S. 90-85.24 for applicants 
for licensure. All permits renewed after March I are subject to 
the original registration fee. 

Histoiy Note: A uthorit}- G. S. 90-85. 24: 
Eff. April A 1999. 

SECTION .1800 - PRESCRIPTIONS 

.1814 AUTOMATED DISPENSING OR DRUG 
SUPPLY DEVICES 

(a) Automated dispensing or drug supply devices may be 
used in health care facility pharmacies and where a pharmacy 
exists, for maintaining patient care unit medication inventories 
or for a patient profile dispensing system, provided the 
utilization of such devices is under the personal supervision of 
the pharmacist. The pharmacist-manager shall develop and 
implement procedures to assure safe and effective use of 
medications, and, at a minimum, shall assure that: 

( 1 ) only authorized personnel, as indicated by written 
policies and procedures, may obtain access to the 
drug inventories; 

(2) all drugs therein are reviewed no less than monthly; 

(3) a system of accountability must exist for all drugs 
contained therein; the purity, potency, and integrity 
of the drugs shall be preserved; 

(4) the device provides records required by this Section 
and other applicable laws and rules; 

(5) requirements for controlled substances security are 
met; and 

(6) prior to the drug being released for access by the 
nurse, the pharmacist enters the medication order 
into a computerized pharmacy profile that is 
interfaced to the automated dispensing unit, so that 
drug allergy screening, therapeutic duplication, and 
appropriate dose verification is done prior to the 
drug being administered 

(b) Phamiacist supervision shall include: 

( 1 ) The packaging and labeling of drugs to be placed in 
the dispensing devices. Such packaging and 
labeling shall conform to all requirements pertaining 
to containers and label contents; 

(2) The placing of previously packaged and labeled 
drug units into the dispensing device; 

(3) The removal of the drug from the dispensing device 
and the final labeling of the drug after removal from 
the dispensing device; and. 

(4) In the absence of a pharmacist, a person legally 



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March 7. 1999 



13:17 



APPROVED RULES 



qualified to administer drugs may remove drugs 
from the dispensing devices only in the quantity of 
doses needed to satisfy immediate patient needs. 

(c) Bar code scanning of drug packaging and storage units 
ma) be utilized as a quality control mechanism if this 
technology is available in the automated dispensing system. 

(d) Restocking of automated dispensing devices may be 
done by pharmacy technicians under the supervision of the 
pharmacist. 

History Note: Authority G.S. 90-85.6: 90-85.32: 90-85.33: 
Eff. April l. 1999. 

SECTION .2500 - MISCELLANEOUS 
PROVISIONS 

.2502 RESPONSIBILITIES OF 

PHARMACIST-MANAGER 

(a) The pharmacist-manager shall assure that prescription 
legend drugs and controlled substances are safe and secure 
within the phamiacy. 

(b) The pharmacist-manager employed or otherwise 
engaged to supply pharmaceutical services may have a flexible 
schedule of attendance but shall be present for at least one-half 
the hours the pharmacy is open or 32 hours a week, whichever 
is less. 

(c) Whenever a change of ownership or change of 
pharmacist-manager occurs, the successor pharmacist-manager 
shall complete an inventory of all controlled substances in the 
pharmacy within 10 days. A written record of such inventor), 
signed and dated by the successor pharmacist-manager, shall 
be maintained in the pharmacy with other controlled 
substances records for a period of three years. 

(d) The pharmacist-manager shall develop and implement a 
system of inventory record-keeping and control which will 
enable that pharmacist-manager to detect any shortage or 
discrepancy in the inventories of controlled substances at that 
pharmacy at the earliest practicable time. 

(e) The pharmacist-manager shall maintain complete 
authority and control over any and all keys to the pharmacy 
and shall be responsible for the ultimate security of the 
pharmacy. 

(f) These duties are in addition to the specific duties of 
pharmacist-managers at institutional pharmacies and 
pharmacies in health departments as set forth in these Rules. 

(g) A person shall not serve as pharmacist-manager at more 
than one pharmacy at any one time except for limited service 
pharmacies. 

(h) When a pharmacy is to be closed permanently, the 
pharmacist-manager shall inform the Board and the United 
States Drug Enforcement Administration of the closing, 
arrange for the proper disposition of the pharmaceuticals and 
return the pharmacy permit to the Board's offices within 10 
days of the closing date. The pharmacist-manager, and the 
pharmacy's owner (if the owner is other than the 
pharmacist-manager), shall transfer prescription tiles to 
another pharmacy for maintenance of patient therapy and shall 
infonn the public of such transfer by posted notice or 



otherwise. Controlled substance records shall be retained for 
the period of time required by law. 

(i) The pharmacist-manager shall prepare a plan to 
safeguard prescription records and pharmaceuticals in the 
event of a natural disaster such as hurricane or flood. 

(]) The pharmacist-manager shall separate from the 
dispensing stock all drug products more than six months out of 
date. 

(k) The pharmacist-manager shall report to the Board of 
Pharmacy information that reasonably suggests that there is a 
probability that a prescription drug or device dispensed from a 
location holding a permit has caused or contributed to the 
death of a patient or customer. This report shall be filed in 
writing on a form provided by the Board within 14 days of the 
owner representative or pharmacist-manager's becoming aware 
of the event. The pharmacist-manager shall retain all 
documents, labels, vials, supplies, substances and internal 
investigative reports relating to the event. All such items shall 
be made available to the Board upon request. 

(1) The Board shall not disclose the identity of a 
pharmacist-manager who makes a report under Paragraph (k) 
of this Rule, except as required by law. All reports made 
under Paragraph (k) of this Rule shall not be released except as 
required by law. 

(m) Dispensing errors which are not detected and corrected 
prior to the patient receiving the medication shall be 
documented and reported to the pharmacist-manager. 
Documentation shall include pertinent chronological 
infomiation and appropriate fomis including the identity' of 
individual(s) responsible. These documents, including action 
taken as part of a quality assurance plan, shall be archived in a 
readily retrievable manner and available for inspection by the 
Board for a period of three years. These documents shall not 
be released except as required by law. 

(n) In any Board proceeding, the Board shall consider 
compliance with Paragraphs (k) and (m) of this Rule as a 
mitigating factor and noncompliance with Paragraphs (k) and 
(m) of this Rule as an aggravating factor. 

HistoiyNote: Authority G.S. 90-85.6: 90-85.21: 90-85.25: 
Eff. May I. 1989: 

Amended Eff. April L 1999 : July I. 1996: March !. 1992: 
October 1. 1990. 

SECTION .2600 - DEVICES 

.2609 REHABILITATION EQUIPMENT 

(a) Rehabilitation equipment suppliers shall follow the 
provisions of this Rule rather than the provisions of 21 NCAC 
46.2611. 

(b) Rehabilitation equipment suppliers shall: 

( I ) Solicit information from the physician, physical 
therapist, occupational therapist, registered nurse 
and other medical or educational personnel, as to the 
results of their assessment and evaluation of the 
patient's physical, functional and associated needs as 
well as the specific goals to be met by the enabling 
technology; 



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March 1, 1999 



1473 



APPROVED RULES 



(2) In consultation with the referring health 
professional(s). patient, patient's family and other 
primary care providers, delineate the appropriate 
choices of commercially available and custom 
fabricated equipment to meet the specified needs of 
the patient: 

(3) Participate in the measurement of the patient, 
utilizing appropriate instruments and techniques to 
assure the fit and function of the selected 
equipment; 

(4) Deliver, fit and adjust the prescribed equipment; 

(5) Instruct the patient and family in the safe and proper 
use and care of the equipment provided; 

(6) Provide service and support for the equipment 
delivered through knowledgeable, skilled and 
trained service personnel and within 72 hours, 
provide a response to patient requests for repair 
service on equipment supplied; however, such 
service and support need not be provided unless the 
patient's account is current; 

(7) Provide a specific, written statement of warranty on 
the equipment provided, including commercial 
warranties and those for adapted or custom 
fabricated items; 

(8) Maintain liability insurance of at least one million 
dollars ($1,000,000) worth of coverage and when 
involved in the design, fabrication or substantial 
modification of commercially available equipment, 
also maintain product liability insurance; and 

(9) Utilize written, quality assurance procedures 
including, but not limited to: 

(A) Reviewing custom designed and fabricated 
equipment and interfacing techniques with 
commercial equipment to assure compatibility 
and safety; 

(B) Understanding the properties of the materials 
being used in custom designed and modified 
equipment to assure long term durability; 

(C) Documenting goals and objectives of the 
referring medical or education personnel, as 
well as short and long term effectiveness of 
the equipment in meeting those goals and 
objectives; and 

(D) Documenting complaints and problems as 
required in Rule .1608(a)( 12) of this Chapter. 

HisloiyNole: Authority G.S. 90-85.3(e).(ll).(r): 90-85.6: 

90-85.22: 

Eff. September 1. 1995: 

Amended Eff. April L J 999: April I. 1997. 

.2611 MEDICAL EQUIPMENT 

(a) Medical equipment suppliers shall: 
( 1 ) Document information from the physician or other 
medical personnel as to the patient's specific needs 
to be met by the equipment delivered as well as the 
effectiveness of the equipment in meeting those 
needs; 



(2) In consultation with the referring health 
professional(s), patient, patient's family and other 
primary care providers, delineate the appropriate 
choices of commercially available equipment to 
meet the specified needs of the patient; 

(3) Participate in the measurement of the patient, 
utilizing appropriate instruments and techniques to 
assure the fit and function of the selected 
equipment; 

(4) Deliver, fit and adjust the prescribed equipment; 

(5) Instruct the patient or family in the safe and proper 
use and care of the equipment provided in 
compliance with Rule .2504 of this Chapter; 

(6) Provide service and support for the equipment 
dispensed or delivered and, within 72 hours, provide 
a response to patient requests for repair service on 
equipment supplied; however, such service and 
support need not be provided unless the patient's 
account is current; 

(7) Maintain liability insurance of at least one million 
dollars (51,000,000) worth of coverage; 

(8) Demonstrate that each item sold or rented has been 
checked, is free of defect, and operates within the 
manufacturers' specifications; 

(9) Refi-ain from modifying equipment to the extent that 
the modification might reasonably cause harm; 

(10) Maintain all electrical components so that they do 
not present a fire or shock hazard; 

(11) Ensure that all appropriate warning labels or 
labeling, including tags, are present on the 
equipment provided; 

(12) Maintain documentation demonstrating that a 
function and safety check of equipment was 
performed prior to set up; 

(13) Maintain an established protocol for cleaning and 
disinfecting equipment which addresses both 
aerobic and anaerobic pathogens including 
procedures to prevent cross-contamination; and 

(14) Clean and disinfect equipment according to 
manufacturers' specifications. 

(b) Medical equipment suppliers shall implement a 
preventative maintenance program for rental equipment which 
includes the following: 

( 1 ) Procedures for problem reporting, tracking, recall, 
and resolution; 

(2) Performance of service as specified by the 
manufacturer and the documentation of such 
performance in the service records; and 

(3) Maintain documentation of repair and maintenance 
of equipment. The following information shall be 
documented in the repair log: 



(A) 


Type of equipment; 


(B) 


Manufacturer; 


(C) 


Model; 


(D) 


Serial number; 


(E) 


Date of repair: 


(F) 


Specific repair made; and 


(G) 


Name of person or company performing the 


March 


/, 1999 13:17 



1474 



NORTH CAROLINA REGISTER 



APPROVED RULES 



repair, 
(c) In addition to Section .2500 of this Chapter providers of 
parenteral and enteral nutrition services shall comply with the 
following counseling requirements: 

(1 ) Utilize orientation checklists to review: 

(A) Instructions for use of the equipment; 

(B) Safet\' precautions; 

(C) Cleaning procedures; 

(D) Maintenance procedures; and 

(E) Return demonstrations on equipment 
delivered. 

(2) Instruct the patient about emergency and routine 
contact procedures; 

(3) Deliver and review with the patient written 
instruction materials to ensure that the patient 
receives adequate information to properly operate 



the equipment; and 
(4) A written plan of service shall be developed, 
implemented, and documented in the patient record. 
The plan of service shall include, but is not limited 
to. the assessment of the safety of the home 
environment, the caregiver or patient's ability to 
comply with the prescription, and the caregiver or 
patient's ability to operate and clean the equipment 
as instructed. 

HislonNote: Aulhorit}' G.S. 90-85.3(e)(/l)(r): 90-85.6: 90- 

85.22: 

Eff. May I. 1997: 

Amended m April I, 1999: .4usu.si 1. 1998. 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1475 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. March 18. 1999. 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room. Raleigh, NC. Anyone wishing to submit written comment on any 



rule before the Commission should submit those comments to the RRC staff, the agency, and the individual 
Commissioners by Monday. March 15. 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the 
Rules Review Commission at 9 1 9-733-272 1 . Anyone wishing to address the Commission should notify the RRC staff and 
the agency at least 24 hours prior to the meeting. 



I 



RULES REVIEW COMMISSION MEMBERS 

Appointed by Senate Appointed by House 

Teresa L. Smallwood. Vice Chairman Paul Powell. Chairman 

John Arrowood Anita White, 2"'' Vice Chairman 

Laura Devan Mark Garside 

Jim Funderburke Steve Rader 

David Twiddy George Robinson 

RULES REVIEW COMMISSION MEETING DATES 

March 18.1999 August 19. 1999 

April 15,1999 September 16. 1999 

May 20, 1 999 October 2 1 , 1 999 

June 17, 1999 November 18, 1999 

July 15, 1999 December 16, 1999 



RULES REVIEW COMMISSION 

January 21, 1999 
MINUTES 

The Rules Review Commission met on January 21, 1999, in the West Wing Conference Room of the Methodist Building, 1307 
Glenwood Avenue, Raleigh, North Carolina. Commissioners in attendance were Chairman Paul Powell, David R. Twiddy, Steven 
P. Rader, R. Palmer Sugg, Laura Devan, John Arrowood, Mark P. Garside, and George S. Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster 

The following people attended: 

Jackie Herbster Kilpatrick Stockton 

Patrice Alexander NC Board of Employee Assistance Professionals 

Warren Plonk State Budget 

Alicia Gregory Poyner & Spruill 

Roy Sonorick DHHS/MH/DD/SAS 

Glenda Harris DHHS 

APPROVAL OF MINUTES 

The meeting was called to order at 10:10 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the December 17, 1998 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

4 NCAC IE .0104: COMMERCE/Commerce Finance Center- The rewritten rule submitted by the agency was approved by the 
Commission. 

4 NCAC IK .0102, .0103, .0302, and .0402: COMMERCE/Commerce Finance Center - The rewritten rules submitted b\' the 



1476 NORTH CAROLINA REGISTER March 1, 1999 13:17 



RULES REVIEW COMMISSION 



agency were approved by the Commission. 

4 NCAC 3B .0101. .0102, and .0103: COMMERCE/Banking Commission - The agency requested additional time to rewrite 
these rules. No action was necessar>. Commissioner Arrowood recused himself from any action on these rules. 

4 NCAC 3H .0002: COMMERCE/Banking Commission - The agency requested additional time to rewrite this rule. No action 
was necessary. Commissioner Arrowood recused himself from any action on this rule. 

10 NCAC 3R .6112: DHHS/Medical Care Commission - The agency and those opposed to this rule requested additional time to 
rewrite the rule. No action was necessary. 

10 NCAC 26H .0304: DHHS/Division of Medical Assistance - The rewritten rule submitted by the agency was approved by the 
Commission. 

12 NCAC 7D .1201. .1202. .1301. .1302. .1303, .1304. .1305, .1306, and .1307: JUSTICE/N C Private Protective Services Board 
- No response was received from the agency on these rules so they were returned to the agency for failure to comply with the 
A PA. 

1 7 NCAC 6B .0 1 1 8: DEPARTMENT OF REVENUE - No action was necessary on this rule. 

2 1 NCAC 46 . 1 804 and .2506: NC Board of Pharmacy - No response was received on these rules. 

21 NCAC 57A .0305: NC Appraisal Board - The agency stated that this rule would be addressed at their February 18. 1999 
meeting. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

1 NCAC 14V .430 1 : DHHS/Commission for MH/DD/SAS - The Commission objected to this rule due to ambiguity. In (2)(a), 
it is not clear what is meant by a "nationally accredited" therapeutic communitv. Who does the accrediting? 

15A NCAC 21H .0110: DENR/Commission for Health Services- The Commission extended the period of review on this rule in 
order to receive information on whether "other rare hemoglobins with symptomatic abnormal clinical thalessima disease" is a 
variant of sickle cell disease, sickle cell trait, or sickle cell thalassemia. 

21 NCAC 1 1 .0109: NC Board of Employee Assistance Professionals - The Commission objected to this rule due to ambiguity. 
The last two sentences in this rule contradict each other. One sentence says the materials may be obtained at no cost while the 
other sa\ s costs varv. It therefore is not clear what the costs are. 

COMMISSION PROCEDURES AND OTHER MATTERS 

A resolution was adopted by the Commission allowing employees of the Rules Review Commission to participate in a 401 (k) 
plan. Mr. DeLuca announced that Ms. Gruber would be retiring on March 31. 1999 after 10 years with the Commission. The 
Joint Legislative Administrative Procedures Oversight Committee met recently. Elections were held for the Rules Review 
Commission and Commissioner Powell was unanimously reelected as Chairman and Commissioner Smallwood was unanimously 
reelected Vice Chairman. Commissioner Rader was unanimously elected as second Vice Chairman. 

The next meeting will be on Februar>' 18, 1999. 

The meeting adjourned at 11:10 a.m. 

RespectfulK submitted, 
Sandv Webster 



13:17 NORTH CAROLINA REGISTER March I, 1999 1477 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Lom' Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge by 
contacting the Office of Administrative Hearings, (919) 733-269S. Also, the Contested Case Decisions are available on 
the Internet at the following address: http://www.state.nc.us/OAH/hearings/decision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior .Administrative Law Judge 

FREDG. MORRISON JR. 

ADMIMSTHATIIE LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores O. Smith 
Ber>'l E. Wade 



AGENO 

ADMINISTRATION 

Occaneechi Band of the Saponi Nation V NC Comm of Indian Affairs 
Carlton L Coleman v Administration. Division of Purchase and Contract 

ALCOHOLIC BE\ ERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission \ Kenneth Jerome 

Alcoholic Beverage Control Commission v .lesse Jacob Joyner, Jr 

Alcoholic Beverage Control Commission \ Trade Oil Company. Inc 

Alcoholic Beverage Control Commission \ Pantana Bobs. Inc 

Alcoholic Beverage Control Comm v Partnership T/A C & J's Shipwreck 

Alcoholic Beverage Control Comm v Harold Webster Hadnott 

Alcoholic Beverage Control Commission v Axis Entertainment 

Sokha Huor Ramadneh \ Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v Delores Williams .AInaqib 

Alcoholic Beverage Control Commission v A\is Entertainment 

Alcoholic Beverage Control Commission v James Aubre\ Stephenson 

Alcoholic Beverage Control Commission v Bridgette Dee Williams 

Alcoholic Beverage Control Commission v Robert Lee. Inc 

Alcoholic Beverage Control Comm \ Partnership. T/A Variety Pic Up #21 

Tarus Jackson v Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm v Simple Elegance Restaurants, Inc 

Alcoholic Beverage Control Comm \ 

Alcoholic Beverage Control Comm 

Alcoholic Beverage Control Comm 

Alcoholic Beverage Control Comm 

Alton Ollivierra Perry v Alcoholic Beverage Control Commission 

William Randall Banks \ Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm v Fast Fare. Inc. 

BOARD OF CONTRAC TORS 

Heritage Pointe Builders. Inc & Patrick Hannon v Bd of Contractors 

CRIME CONTROL AND PIBLIC SAFET\ 

Loretta Battle v Crime Victims Compensation Commission 
Cynthia Austin v Crime Victims Compensation Commission 
Marcella Skaggs v Crime Victims Compensation Commission 
Talmadge E McHenrv v Crime Victims Compensation Commission 
Linda Caldwell Wiggins v Crime Victims Compensation Commission 
Kenneth T Lytle v Crime Victims Compensation Commission 



Daniel Hinton Green 
Zaheer Ahmad Bajua 
Partnership T/A Club Old Times 
Jerald Taft Howell. Jr 



CASE 




NIMBER 


ALJ 


96 DOA 0006 


Smith 


98DOA 1016 


Phipps 


97 ABC 1 205 


Phipps 


97 ABC 1438 


Phipps 


98 ABC 0033 


Reilly 


98 ABC 0293 


Reillly 


98 ABC 0296 


Morrison 


98 ABC 0324 


Smith 


98 ABC 0357*' 


Reillv 


98 ABC 0382 


Smith 


98 ABC 0392 


Chess 


98 ABC 0401 »' 


Reilly 


98 ABC 0494 


Chess 


98 ABC 0.501 


Reilly 


98 ABC 051 8 


Gray 


98 ABC 0714 


Morrison 


98 ABC 0768 


Smith 


98 ABC 0850 


Phipps 


98 ABC 0889 


Morrison 


98 ABC 0960 


Owens 


98 ABC 1071 


Owens 


98 ABC 1171 


Smith 


98 ABC 1298 


Owens 


98 ABC 1355 


Grav 


98 ABC 1398 


Gray 


97 LBC 0243 


Phipps 


97 CPS 0654 


Grav 


97CPS 1499 


Reilly 


98 CPS 0065 


Owens 


98 CPS 01 16 


Grav 


98 CPS 01 53 


Chess 


98 CPS 01 76 


Reillv 



DATE OF 


PI BLISHED DECISION 


DECISION 


REGISTER CITATION 


12/07/98 


13 13 NCR 1075 


12/16/98 




07/23/98 




06/19/98 




08/21/98 




09/17/98 


13 11 NCR 933 


08/19/98 




1 2/02/98 




07/02/98 




06/30/98 


13 03 NCR 350 


07/30/98 




07/02/98 




09/01/98 




08/11/98 




08/11/98 




10/09/98 




07/13/98 




10/26/98 




11/06/98 




10/30/98 




01/29/99 




12/03/98 




11/23/98 




02/10/99 




02/02/99 





08/17/98 



08/10/98 
08/12/98 
06/05/98 
06/24/98 
08/27/98 
07/06/98 



13 05 NCR 533 



I 



1478 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



CONTESTED CASE DECISIONS 



AGENCY 

Shirley Henrshand v Crime Victims Compensation Commission 
Brenda Jean Thomas \ Crime Victims Compensation Commission 
TareMon L Johnson v Crime Victims Compensation Commission 
Mia Thompson-Clark v Crime Victims Compensation Commission 
Godfrey Akenabor v Crime Victims Compensation Commission 
Valine H Thompson \' Crime Victims Compensation Commission 
Rufus K Williams v Department ofCrime Control & Public Safety 
Faye E Pouell v Crime Victims Compensation Commission 
Hubert Lee Grant v Crime Victims Compensation Commission 
Mary Elizabeth Troutman v Crime Victims Compensation Comm 
Brenda H Alston v Crime Victims Compensation Commission 
Shirley P Chen v Crime Victims Compensation Commission 
Kenneth B Hall. Sr v Crime Victims Compensation Commission 
Dunnie G Smith \ Crime Victims Compensation Commission 
Felicia House \ Crime Victims Compensation Commission 
Antonia F Jones \ OfTiceof Administrative Hearings 

ENGINEERS AND SI R\ E\ ORS, BOARD OF EXAMINERS FOR 

Thomas A Truelove, Jr , PE v Bd /Examiners/Engineers and Surveyors 

EN\ IRONMENT AND NATl RAL RESOl RCES 

Albert C Wright. Jr v Environment. Health. & Natural Resources 
Albert C Wright. Jr v Environment Health. & Natural Resources 
Ladane Williamson and Odell Decarol W illiamson \ DENR 
Teresa Hetlin v Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 
James F Smith \ Department ofEnMronment and Natural Resources 
William Hickman v Department of Environment and Natural Resources 
Hickor> Alliance v Department of Environment and Natural Resources 
and 

Godfrey Lumber Company, Inc 
John M Silvia V Department of Environment and Natural Resources 
Godtrey Lumber Compans. Inc \ Dept /Environment & Natural Resources 
and 

Hickory Alliance 
GregorA B Jackson. Brenda R Jackson \ Greene Cb. HIth Dept , ENR 
Robert G GofT. Sr v Department of En\ironment and Natural Resources 
Scotland Water. Cedar Circle v Environment and Natural Resources 
Womble & Company \ Dept of Environment and Natural Resources 
Eric Glenn Harrison v Environment and Natural Resources 
Robert G GotT, Sr v Department of Environment and Natural Resources 
Mid South Water Systems, inc v Environment and Natural Resources 
Wilbur E Earp v Department of Environment and Natural Resources 
NorellBahrsv Carteret Cn Health Dept . DENR 
Charles Davis \ Department of EnMronment and Natural Resources 
JC Favv v Department of Environment and Natural Resources 
Unicon Concrete, inc v Dept of Environment and Natural Resources 
Hugh & Bonnie Mills \ Dept of Environment and Natural Resources 
JM's Professional Con.struction Svcs . Ltd v DENR 
Ronald E Bennett v Environment and Natural Resources 
Don W Hunt V Halifax Countv Health Department 
Wayne D Magee v Department of Environment and Natural Resources 
Karen J Dixon. M\ ra Jones. Alphonzo i^ixon \ Nash Ct\ Health Dept 
.Amos Vaughan \ Department of Environment and Natural Resources 

Division of Air Quality 

Sebrmg Dev . Patrick Oueen.'John .Amirante \ DENR, Air Quality 
John Beard v DENR. Division of , Air Quality 

Division of Coastal Management 

Preston Warren \ Duision of Coastal Management. Wilmington. NC 
Marion T Noe v DENR. Division of Coastal Management 

Division of Environmental Health 

Gerald P Sigal \ DENR. Division of Environmental Health 
Ronnie Lee Hamill \ Pitt Ct> Health Dept . Environmental Health Div 
Joe Scichilone v Crave Natural Resources. Div of Environmental Health 
Ralph K Crotts v Burke County Env Health Dept . Septic Tank Div 
Carl D, Wicker v .Alamance Cty Health Dept , Env Health Division 

Division of Environmental Management 

Save Our Rivers. Inc . et al v Toun of Highlands. EHNR. Env Mgmt . 

William W Cohey, Jr. Secretary 
US Dept of the Interior Nafl Park Svce v Environmental Mgmt Comm 



CASE 




DATE OF 


Nl'MBER 


ALJ 


DECISION 


98 CPS 0263 


Morrison 


08/11/98 


98CPS0314 


Morrison 


08/11/98 


98 CPS 0327 


Reillv 


09/02/98 


98 CPS 0349 


Chess 


05/14/98 


98 CPS 0427 


Owens 


10/30/98 


98 CPS 0674 


Morrison 


11/18/98 


98 CPS 0676 


Morrison 


1 0/23/98 


98 CPS 0808 


Owens 


08/28/98 


98 CPS 0839 


Morrison 


10/21/98 


98 CPS 0901 


Smith 


11/12/98 


98 CPS 0952 


Phipps 


11/10/98 


98 CPS lOL'; 


Phipps 


09/17/98 


98 CPS 1 1 70 


Mann 


12/21/98 


98 CPS 1201 


Reilly 


01/04/99 


98 CPS 1273 


Smith 


01/25/99 


98 CPS 1403 


Gray 


01/29/99 


98 ELS 0047 


Mann 


11/12/98 


96EHR06I0*'" 


Gray 


01/29/99 


96EHR0630*'' 


Gray 


01/29/99 


96EHR 1926 


Gray 


09/01/98 


97 EHR 0409 


Morrison 


07/29/98 


97EHR0451 


Reilly 


07/02/98 


97 EHR 1365 


Chess 


07/17/98 


97 EHR 1388 


Gray 


11/06/98 


97 EHR 1607 


Reilly 


07/17/98 


97 EHR 1646 


Chess 


06/03/98 


97 EHR 1676 


Reilly 


07/17/98 


98 EHR 0042 


Reilly 


07/02/98 


98 EHR 0072*- 


Gray 


06/25/98 


98 EHR 0236 


Smith 


06/09/98 


98 EHR 0345 


Chess 


11/05/98 


98 EHR 0373 


Reilly 


08/28/98 


98 EHR 0448*- 


Gray 


06/25/98 


98 EHR 0548 


Gray 


12/02/98 


98 EHR 0606 


Smith 


10/21/98 


98 EHR 0884 


Owens 


11/02/98 


98 EHR 0890 


Owens 


11/09/98 


98 EHR 0957 


Gray 


12/11/98 


98 EHR 0990 


Mann 


01/14/99 


98 EHR 1090 


Phipps 


12/08/98 


98 EHR 1217 


Owens 


12/21/98 


98 EHR 1237 


Owens 


1 2/29/98 


98 EHR 1285 


Gray 


12/17/98 


98 EHR 1471 


Phipps 


02/02/99 


98 EHR 1475 


Reillv 


02/10/99 


98 EHR 1538 


Reilh 


01/15/99 


98 EHR 0926 


Phipps 


12/11/98 


9SEHR 1314 


Gray 


01/29/99 


98 EHR 01 77 


Phipps 


10/05/98 


98 EHR 0976 


Smith 


12/02/98 


98 EHR 0051 


Smith 


10/02/98 


98 EHR 1 200 


Smith 


12/29/98 


98 EHR 1286 


Chess 


01/07/99 


98 EHR 1334 


Owens 


01/14/99 


98 EHR 1718 


Wade 


02/03/99 


91 EHR 0377 


Gray 


07/30/98 


98 EHR 0410 


Smith 


08/20/98 



PI BUSHED DECISION 
REGISTER CIT.4TION 



13 12 NCR 1015 



13 10 NCR 853 



13 12 NCR 1035 



13 07 NCR 609 



13 11 NCR 928 



13 06 NCR 578 



13:17 



NORTH CAROLINA REGISTER 



March I, 1999 



1479 



CONTESTED CASE DECISIONS 



AGENCY 

Division of Marine Fisheries 

Lady LaShanda Melvin Bwant v EHNR. Division of Marine Fisheries 
Gerald Moore, el al v DENR. Division of Marine Fisheries 

Division of Solid Waste Management 

Sieve Aldridge, el al v DENR. Division of Sohd Waste Management 

Division of Hater Quality 

Raymond L Manin v DENR. Division of Water Quality 

Worsley Oil Companies. Inc v DENR. DWQ. Groundwater Section 

Silver Bullet. Inc v DENR. Division of Water Quality 

HEALTH AND HI' MAN SERVICES 

Stanley C Ochulov OfJ7 Administrative Hearings. Mr R Marcus Lodge 

Oliver C .lohnson. Hazel T Johnson v Health and Human Services 

Louise Streater v Health and Human Services 

Richard E Lawrence, Rebecca A Lawrence v Health and Human Services 

John David Brinson v Department of Human Resources 

Stephanie Wade v Department of Health and Human Services 

Carolyn L Freeman v Department of Human Resources 

Otis L Mack. Jr v OtTice of Administrative Hearings 

Christopher Germano, Lee Germano v Department of Health 

Carol and Conrad Kunkel v Department of Human Services 

Donald Wayne Perry v Office of Emergency Medical Services 

E Jean Woods v EDS - Medicaid 

Soma Schaefer Jolly v Village Care King. Autumn Care. DHHS 

Sandra Nelson Molina v Department of Health & Human Services 

Bemadette Anderson v Department of Health & Human Services 

Cheryl Lynn Staton v Department of Health & Human Services 

Mary Barrier v Administrative Hearing 

James Michael Wallace v Department of Human Resources 

Barbara Jump \ Department of Human Services 

Brand\ Shea Minton v Markus Lodge. General Counsel 

Reeva Oliver v Board of Nursing. Nursing Asst Registry 

Jackie E Ratliffv Department of Health & Human Services 

Division of Child Development 

Dulatoun Presbyterian Children's Ctr v DHHS. Child Development 
Cookie's Dav Care Home. Wonza W Garolds v DHHS. Child Dev 
Cassandra Myers v Division of Child Development 
Theresa McCormick v DHHS. Division of Child Development 
Dulatown Presbyterian Children Ctr v DHR. Child Development 
Dora's Child Development Center v Mecklenburg Ct> DSS. and DFIR 
Victory Day Care & Learning Ctr . Joe Walters v DHHS. Child Dev 
Four-County Community Services, inc v Human Resources, Child Dev 

Division of Facilit}' Services 

Pearlie W Lavvson v DHHS, Facility Svcs . Health Care Personnel Reg 
Annie K Morgan v Health & Human Senices . Facility Services 
Mooresvi lie Hospital Mgmt Associates. Inc d/b/a Lake Norman Regional 

Medical Center v DHR. Facility Services. Certificate of Need Section 
and 

Autumn Corporation and McKinley V Jumey 
Warren Moore & Catherine Moore v DHR. Div of Facility Services 
Constellation Health Services. Inc and Constellation Senior Services, 

Inc v DHR. Facility Services. Group Care Licensure Section 
and 

Diversified Health Group. LLC and The Innovative Health Group. Inc 
Dialysis Care of NC. LLC. d/b/a Dialysis Care of Rowan County 

v DHR. Division of Facility Services. Certificate of Need Section 

v Biomedical Applications of NC. Inc d/h/a BMA of Kannapolis d/b/a 

Metrolina Kidney Center of Kannapolis (Lessee) and Metrolina Nephrology 

Associates. PA (Lessor) 
Robin Annette Reavis \ Health and Human Svcs . Div of Facility Svcs 
Jennifer Blofeld v DHHS. Facility Svcs . Health Care Personnel Registry 
Sunlite Retirement Home, W'lnnie Jane Johnson v DHR. Facility Services 
Helen Shokoti v Health and Human Services. Div of Facility Services 
Ann Davis Rest Home v Group Care Licensure Section 
Diane Lingard v DHR. Facility Svcs. Health Care Personnel Reg 
Kimberly Annette Smith Hull v DHHS. Division of Facility Services 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington. 

Inc . and New Hanover Health Care Center. LLC v DHHS. Div of 

Facility Services. Certificate of Need Section, 
and 



CASE 




DATE OF 


Pl'BLISHED DECISION 


MMBER 


\U 


DECISION 


REGISTER CITATION 


97EHR 1459 


Gray 


07/20/98 




98 EHR 0322 


Owens 


10/08/98 


13:09 NCR 797 


98 EHR 0665 


Chess 


09/09/98 


13,07 NCR 617 


98 EHR 0590 


Gray 


09/21/98 




98 EHR 0735 


Chess 


08/24/98 




98 EHR 093 1 


Chess 


08/20/98 




98 DHR 0021 


Reilly 


06/24/98 




98 DHR 0090 


Gray 


07/08/98 




98 DHR 0196 


Gray 


06/03/98 




98 DHR 0209 


Phipps 


07/15/98 




98 DHR 0369 


Owens 


08/17/98 




98 DHR 0666 


Reilly 


08/19/98 




98 DHR 0721 


Gray 


08/05/98 




98 DHR 0729 


Phipps 


09/09/98 




98 DHR 0780 


Owens 


07/28/98 




98 DHR 1047 


Smith 


12/04/98 




98 DHR 1097 


Smith 


01/13/99 




98 DHR 1118 


Gray 


1 0/26/98 




98 DHR 1 1 34 


Chess 


01/07/99 




98 DHR 1243 


Chess 


01/21/99 




98 DHR 1257 


Morrison 


12/11/98 




98 DHR 1259 


Smith 


11/30/98 




98 DHR 1287 


Chess 


11/19/98 




98 DHR 1340 


Grav 


12/21/98 




98 DHR 1350 


Reilly 


01/20/99 




98 DHR 1595 


Smith 


01/06/99 




98 DHR 1604 


Reilly 


02/09/99 




98 DHR 1689 


Reilly 


02/01/99 




98 DHR 0654 


Gray 


08/06/98 




98 DHR 0946 


Gray 


01/13/99 




98 DHR 0948 


Owens 


09/03/98 




98 DHR 0989 


Smith 


1 2/29/98 




98 DHR 1 1 12 


Morrison 


10/16/98 




98 DHR 1 1 84 


Phipps 


09/25/98 




98 DHR 1533 


Smith 


01/25/99 




98 DHR 1534 


Smith 


01/25/99 




97 DHR 1034 


Becton 


07/30/98 




97 DHR 1046*" 


Phipps 


07/23/98 




97 DHR 1209 


Reilly 


06/23/98 





97 DHR 1279 
97 DHR 1529 



97 DHR 1588 



Mann 
Grav 



Phipps 



97 DHR 1672 


Reilly 


98 DHR 0096 


Grav 


98 DHR 01 24 


Phipps 


98 DHR 01 73 


Chess 


98 DHR 0197 


Phipps 


98 DHR 0214 


Becton 


98 DHR 0239 


Phipps 


98 DHR 0244*" 


Phipps 



09/08/98 
06/24/98 



08/31/98 



08/12/98 
08/21/98 
06/11/98 
08/26/98 
06/23/98 
06/22/98 
06/23/98 
11/24/98 



13 12 NCR 1018 



1480 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
Nt MBER 



AU 



DATE OF 
DE( ISION 



PI BLISHED DECISION 
REGISTER CITATION 



Devin Partnership and Devin Health Care Associates, L L C , Columbia 

Cape Fear Heahhcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmmgton Inc . and 

New Hano\ er Health Care Center L L C 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimmgton. 

Inc . and New Hanover Health Care Center. LLC v DHMS. Di\ of 

Facilitv Services. Cenitlcate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. LLC. Columbia 

Cape Fear Healthcare S\stem. Limited Partnership, Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center L L C 
Living Centers-Southeast. Inc , Lutheran Retirement Center-Wilimington. 

Inc , and New Hanover Health Care Center. L L C v DHHS, Div ot' 

Facilitv Services, Certificate of Need Section, 
and 
Devm Partnership and Devin Health Care Associates, LLC. Columbia 

Cape Fear Healthcare Ssstem, Limited Partnership, Living Centers 

Southeast, Inc , Lutheran Retirement Center-Wilminglon Inc . and 

New Hanover Health Care Center LLC 
Rose Mane Spencer v DHHS. Division of Facilitv Services 
Deborah .Ann Holt v DHHS. Division of Facilitv Services 
Columbia Direct Mktg Corp v DHHS. Facility Svcs . Soltn Lie Br 
Terti Michelle Tyler v Health & Human S\cs, Div of Facility Services 
Dons Jones Holmes \ DHHS, Facility S\cs. Health Care Personnel Reg 
Annie K Morgan \ Health & Human Ser\ ices . Facilitv Ser\ ices 
Shirles Bowling v DHHS. Facilitv Sen. ices. Health Care Personnel Reg 
Johnnie E Williams v DHHS. Division of Facilitv Services 
Christy Jeton Hall \ DHHS. Dixision of Facilifv Services 
Judith May Gale v DHHS. Llivision of Facility Services 
Latonia Denise Thomas v DHHS. Division of Facility Services 
Tracey Deirde Gallov\ay v DHHS. Facility Svcs , Health Care Per Reg 
All Teawanda Bvrd v DHHS, Division of Facilitv Services 
Happ\ Dan's Home, Gladys Cooke v Facility Svcs . Group Care Lie Sect 
Wanda Best \ Dn ision of Facilitv Serv ices, DHHS 
lrace\ Yelvenon v DHHS. Division of Facility Services 
Rose Mane Hadley v DHHS. Division of Facility Serv ices 
Robena Juanita Jones v DHHS. Division of Facility Services 
Mona Lisa Lucas v DHHS. Division of Facility Services 
Edna Weaver Sawyer \ DHHS. Division of Facility Services 
Linda Estes Richardson v DHHS. Division of Facility Services 
Shirley L Smith, a/k/a Shirley Lee Turner v DHHS, Facility Services 
Felicia Ozoms V DHHS, Division of Facility Services 
Bridgette Taylor v Nurse Aide I Program, DFS 
Jamie Jamigan Oaks v DHHS, Division of Facility Services 
Barbara Davis v DHHS. Division of Facility Services 
Virgie Harshaw Stinson v Health Care Personnel Registry 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital .Authority, d/b/a Carolinas Medical Ctr. 

and Harry Mahannah, M D v DHHS. Division of Medical Assistance 
Isaiah Smith. Jr . by/through his Guardian. Lawrence E Thompson. Ill 

V DHHS. Division of Medical Assistance 
William M Bell. Jr v DHHS. Medical .Assistance. Third Party Rec Sec 
Alic F Schneider. Julia R Hammonds v DHHS. Medical Assistance 
April Dawn Bass v DHHS. Division of Medical Assistance 

Division of Social Services 

William & Crystal Steaklev v DHHS. Division of Social Services 
Rail Abdus-Salaam v Department of Human Resources. DSS-DCA 

Child Support Enforcement Section 
William Robert Cameron v Department of Human Resources 
Robert H Black v GuiUord Countv Child Support Enforcement 
Dorman E Drake v Department of Human Resources 
Garry R McNeill v Departmentof Human Resources 
Robert .Alan Davis v Department of Human Resources 
Michael W White v Department of Human Resources 
Trov R Emmons. Jr v Department of Human Resources 
Marvin A Pike v Department of Human Resources 
Marv Putnam Averv v DSS, Durham County Child Support Enforcement 
Anthony B Gritfin v Department of Human Resources 
Gilbert G Gray v Department of Human Resources 
Jimmv Dorsey V Departmentof Human Resources 



98DHR0245* 



Phipps 



1)8 DHR 0247*' 



Phipps 



11/24/98 



1 1 /24/98 



13 12NCR 1018 



13 I2NCR 1018 



98 DHR 0279 


Chess 


01/07/99 




98 DHR 0348 


Phipps 


06/22/98 




98 DHR 0394 


Morrison 


12/31/98 




98 DHR 0458 


Gray 


08/21/98 




98 DHR 0463 


Gray 


08/21/98 




98 DHR 0496»" 


Phipps 


07/23/98 




98 DHR 0547 


Grav 


11/09/98 




98 DHR 0639 


Reilly 


07/02/98 




98 DHR 0706 


Gray 


10/12/98 




98 DHR 0739 


Owens 


12/16/98 




98 DHR 0809 


Gray 


10/23/98 




98 DHR 0824 


Gray 


09/24/98 




98 DHR 0838 


Reilly 


12/29/98 




98 DHR 0885 


Owens 


11/19/98 




98 DHR 0936 


Chess 


01/11/99 




98 DHR 0955 


Owens 


01/04/99 




98 DHR 0970 


Smith 


10/08/98 




98 DHR 1089 


Gray 


12/29/98 




98 DHR 1110 


Gray 


01/04/99 




98 DHR nil 


Gray 


01/04/99 




98 DHR 1131 


Chess 


01/07/99 




98 DHR 1132 


Chess 


01/07/99 




98 DHR 1173 


Gray 


01/20/99 




98 DHR 1283 


Mann 


12/14/98 




98 DHR 1284 


Smith 


01/12/99 




98 DHR 1317 


Gray 


12/21/98 




98 DHR 1692 


Gray 


02/10/99 




97 DHR 0621 


Smith 


07/08/98 




98 DHR 0273 


Gray 


12/07/98 




98 DHR 0979 


Mann 


01/13/99 


13 16 NCR 1366 


98 DHR 0994 


Morrison 


10/29/98 




98 DHR 1687 


Mann 


01/14/99 




98 DHR 0076 


Gray 


07/20/98 




98 DHR 0771 


Owens 


07/30/98 




96 CRA 1 525 


Gray 


01/11/99 




96 CRA 1 548 


Mann 


10/09/98 




96 CRA 1717 


Smith 


08,25/98 




96 CRA 1 743 


Reilly 


10/22/98 




96 CRA 1781*" 


Phipps 


08/20/98 




96 CRA 1784 


Gray 


09/25/98 




96 CRA 1798 


Reilly 


08/25/98 




96 CRA 1814 


Chess 


09/24/98 




96 CRA 1849 


Morrison 


09/01/98 




96 CRA 1855 


Gray 


12/18/98 




96 CRA 1858 


Morrison 


10/08/98 




96 CRA 1862 


Smith 


12/15/98 





13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1481 



CONTESTED CASE DECISIONS 



age.no 

Herbert Leon Sellers v Department of Human Resources 

Gregor> Boren v Department of Human Resources 

David W Davisv Department of Human Resources 

Dale W Hutchmson V Department of Human Resources 

Kelvm Cherrv v Department of Human Resources 

Joe A Lynch V Department of Human Resources 

Gar> W Wampler V Department of Human Resources 

Kenneth Eugene Scott \ Department of Human Resources 

Mark Owens Frmk v Department of Human Resources 

JefTer. Lee Graves v Department of Human Resources 

Donald L Carr. Jr v Department of Human Resources 

Marvm Diggs v Department of Human Resources 

Michael Patrick Dyme v Department of Health & Human Services 

Paula C Freeman v Department of Health & Human Services 

Sherman L Arnold Sr \ Department of Health & Human Services 

Clifton Pierce \ Department of Health & Human Ser\ices 

Dennis Lee McNeill v Department of Human Resources 

Byron O Ashby 11 v Department of Human Resources 

Hubert L Morrison v Department of Human Resources 

Robert Alan Davis v Department of Human Resources 

Larry S Robinson v Child Support Enforcement Agency 

Darryl C Thompson v Department of Health & Human Services 

DarrylC Thompson v Department of Health & Human Services 

Michael J Burgess v Department of Human Resources 

Michael Anthonv Hill \ Department of Human Resources 

Joseph L Hill V Department of Human Resources 

Michael A Wilder v Department of Human Resources 

Billy Anthon\ Jr v Department of Human Resources 

James B Benson v Department of Human Resources 

Lawrence Wilkes v Department of Human Resources 

Alton D Bagley v Department of Human Resources 

Bernel B Berry J r v Department of Human Resources 

Darryl Simpkins \ Department of Health & Human Services 

Anthonv Montgomery v Department of Human Resources 

Ternace Joan Ness v Department of Human Resources 

Joseph Gerard McPhillips v Department of Human Resources 

Terrv Letterman v Department of Human Resources 

William E Mines V Department of Human Resources 

Christopher Alan v Department of Human Resources 

Annette Chipman \ Department of Human Resources 

Paul J Mobley, Jr v Department of Human Resources 

Alvin G Piper V Department of Health & Human Services 

Robert A Sherer v Department of Human Resources 

Rodney A Morrison v Department of Human Resources 

Gregory Andre Brovvn v Department of Health &. Human Services 

Rodger Hazen II v Department of Human Resources 

Marion Amett v Department of Human Resources 

Wade A Burgess \ Department of Human Resources 

Robert L Robinson v Department of Human Resources 

Jamie A Hunt \ Department of Health & Human Services 

Renardo Jenkins v Department of Human Resources 

Anthony Love v Department of Human Resources 

Eric Baldwin v Department of Health & Human Services 

Eddie R Steward v Department of Health & Human Services 

Steven Kent Gold v Department of Human Resources 

Leroy J Poole v Department of Human Resources 

Hoyal A McLean v Department of Health & Human Services 

Michael Bernard Hill v Department of Health & Human Services 

Tern. M Cable v Department of Human Resources 

Charlie RatlifTJr v Department of Health & Human Services 

Donald W Lee v Department of Health & Human Services 

Bobby D Cook v Department of Health &. Human Services 

John B Hall \ Department of Human Resources 

Dertick A Brinton \ Department of Human Resources 

Tabatha D Pate \ Department of Human Resources 

Amanda F Blount v Department of Human Resources 

Gregory Carfv (IV #1564206) v Department of Human Resources 

Gregory Carty ( I V # 1 564 1 66 ) v Department of Human Resources 

John L Bullard v Department of Human Resources 

Frank A Cotton v Department of Human Resources 

Charlie Gray Hunt Jr v Department of Human Resources 

Willie R Cruse v Department of Health & Human Services 

Thomas H Lotze, Jr v Department of Health & Human Services 

Robert L Williams v Department of Human Resources 



CASE 




DATE OF 


PI BLISHED DECISION 


MMBER 


ALJ 


DECISION 


REGISTER CITATION 


96CRA 1932 


Smith 


11/06/98 




96CRA 1945 


Gray 


12/14/98 




96CRA 1976 


Smith 


11/06/98 




96CRA 1981 


Mann 


08/26/98 




97 CRA 0026 


Gray 


12/14/98 




97 CRA 0045 


Phipps 


10/09/98 




97 CRA 0187 


Smith 


12/15/98 




97 CRA 1232 


Chess 


11/06/98 




97 CRA 1524 


Mann 


10/09/98 




98 CRA 0137 


Becton 


06/23/98 




98 CRA 0545 


Reilly 


06/08/98 




98 CRA 0588 


Reilly 


06/24/98 




98 CRA 0787 


Gray 


09/17/98 




98 CRA 1117 


Smith 


12/18/98 




98 CRA 1152 


Mann 


1 0/28/98 




98 CRA 1430 


Smith 


01/11/99 




96CSE1305 


Gray 


06/22/98 




96CSE 1435 


Mann 


07/15/98 




96CSE1649 


Reilly 


08/12/98 




96CSE 1780*' 


Phipps 


08/20/98 




96CSEI848 


Gray 


11/05/98 




96CSE1854*" 


Chess 


09/01/98 




96CSE 1902*'' 


Chess 


09/01/98 




96CSE 1989 


Mann 


12/10/98 




96CSE2028 


Mann 


08/26/98 




97CSE0624 


Chess 


11/06/98 




97CSE1301 


Chess 


07/17/98 




97CSE 1393 


Reilly 


06/24/98 




97CSE 1399 


Gray 


12/14/98 




97CSE 1419 


Gray 


11/17/98 




97CSEI424 


Chess 


06/02/98 




97CSE 1435 


Smith 


06/12/98 




97CSEI436 


Chess 


08/11/98 




97CSE 1442 


Phipps 


06/17/98 




97 CSE 1 450 


Mortison 


12/09/98 




97CSE 1467 


Mann 


10/09/98 




97 CSE 1492 


Smith 


06/22/98 




97 CSE 1527 


Mann 


09/08/98 




97 CSE 1 544 


Chess 


10/16/98 




97 CSE 1545 


Phipps 


07/23/98 




97 CSE 1568 


Phipps 


06/17/98 




97 CSE 1599 


Phipps 


11/10/98 




97 CSE 1605 


Mann 


07/15/98 




97 CSE 1611 


Gray 


10/23/98 




97 CSE 1656 


Gray 


08/27/98 




97 CSE 1666 


Chess 


07/17/98 




97 CSE 1685 


Mann 


12/10/98 




98 CSE 0071 


Mortison 


06/12/98 




98 CSE 01 30 


ReilK 


07/15/98 




98 CSE 0307 


Mortison 


07/06/98 




98 CSE 0310 


Smith 


06/23/98 




98 CSE 0312 


Phipps 


06/23/98 




98 CSE 03 19 


Phipps 


12/15/98 




98 CSE 0320 


Mortison 


02/02/99 




98 CSE 0333 


Mortison 


07/01/98 




98 CSE 0375 


Reilly 


07/02/98 




98 CSE 0420 


Smith 


07/29/98 




98 CSE 0421 


Becton 


07/15/98 




98 CSE 0433 


Phipps 


12/09/98 




98 CSE 0449 


Mann 


07/15/98 




98 CSE 0469 


Gray 


11/09/98 




98 CSE 0483 


Reillv 


10/06/98 




98 CSE 0506 


Chess 


07/20/98 




98 CSE 0555 


Smith 


08/07/98 




98 CSE 0556 


Becton 


06/23/98 




98 CSE 0560 


Chess 


07/29/98 




98 CSE 0561 •'' 


Phipps 


09/23/98 




98CSE0562»'' 


Phipps 


09/23/98 




98 CSE 0569 


Mortison 


08/06/98 




98 CSE 0578 


Gray 


10/08/98 




98 CSE 0607 


Smith 


06/22/98 




98 CSE 0653 


Mann 


08/26/98 




98 CSE 0658 


Phipps 


08/31/98 




98 CSE 0682 


Smith 


06/22/98 





1482 



NORTH CAROLINA REGISTER 



March I, 1999 



13:17 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
MMBER 



ALJ 



DATE OF 
DECISION 



PI BLISHED DECISION 
REGISTER (ITATION 



Patrick Bass V Depanment of Health & Human Sen. ices 98 CSE 068') Owens 

Tauanna Wheeler v Department of Health & Human Ser\'ices 98 CSE 0691 Owens 

Timothy Kinne\ V Department of Health & Human Services 98 CSE 0728 Smith 

Teresa L Galloway v Department of Health & Human Services 98 CSE 0769 Becton 

Michael A Looper v Department of Health & Human Ser\'ices 98 CSE 0783 Chess 

Kenneth E Strickland \ Department of Health & Human Services 98 CSE 08 17 Mann 

Host H Bunt Jr \ Department of Health & Human Ser\ ices 98CSE08I8 Morrison 

Vernon Reginald Pinkney v Department of Health & Human Services 98 CSE 0833 Owens 

Elijah G Deans \ Department of Health* Human Services 98 CSE 0867 Phipps 

James Howard Alexander v Department of Health & Human Services 98 CSE 0869 Reilly 

Lee J Coggins V Depanment of Human Resources 98 CSE 0894 Smith 

Mark J Houlbrook v Department of Health & Human Services 98 CSE 0949 Smith 

Henry A Han-iel. Jr v Department of Health & Human Services 98 CSE 0975 Chess 

Amanda F Haviland Blount \ Depanment of Health & Human Services 98 CSE 0985 Mann 

Deniira JetTnes V Depanment of Health & Human Services 98 CSE 1036 Morrison 

Bryant Barksdalev Department of Health & Human Services 98 CSE 1052 Morrison 

Cleatus Dean Cuthhertson \ Department of Human Resources 98 CSE 1072*'" Phipps 

Cleatus Dean Cuthbertson \ Department of Human Resources 98 CSE 1073*'" Phipps 

Karen Mitchell \ Department of Human Resources 98 CSE 1095 Reilly 

Roberts Willett v Department of Health & Human SeiA ices 98 CSE 11 53 Chess 

Judi Devlin \ Depanment of Health & Human Serv ices 98 CSE 1177 Gray 

Issac L Hue> v Department of Health & Human Services 98 CSE 1301 Owens 

Curtis! Brown v Department of Health & Human Services 98 CSE 1311 Phipps 

Rafael L Garcia v Department of Human Resources 98 CSE 1353 Reilly 

David Chisolm V Department of Human Resources 98 CSE 1369 Smith 

Robert McKoy v Department of Health & Human Services 98 CSE 1371 Chess 

Marc R McGahce v Department of Human Resources 98 CSE 1381 Gray 

Solomon Freeman v Department of Human Resources 98 CSE 1389 Morrison 

BillG Seamansv Scotland Cn Child Sup Enf -Scotland County DSS 98CSE1391 Phipps 

Michael Jefferson V Department of Health & Human Services 98 CSE 1408 Chess 

Keith Jerome Greene Jr V Department of Human Resources 98 CSE 1417 Gray 

Derrick M Malletv \ Department of Human Resources 98 CSE 1420 Morrison 

Cleveland Tern. V Depanment of Human Resources 98 CSE 1424 Phipps 

Ton> Mitchell Guion v Department of Health & Human Services 98 CSE 1434 Chess 

Curtis M Threattv Department of Health & Human Services 98 CSE 1447 Phipps 

Tern 1, Dedie V Department of Human Resources 98 CSE 1458 Smith 

JetTrev Navares V Department of Human Resources 98 CSE 1461 Gray 

Larry C William v Department of Health & Human Services 98 CSE 1469 Morrison 

Joseph R Engelbrecht V Department of Health & Human Services 98 CSE 1472 Owens 

Antonio M Tovvnsend v Depanment of Health & Human Services 98 CSE 1473 Phipps 

Sammy Ray Smith v Department of Health & Human Services 98 CSE 1474 Reilly 

Karlos M Gregory v Department of Human Resources 98 CSE 1507 Smith 

Man in C Upchurch v Department of Human Resources 98 CSE 1508 Mann 

Vmce E Green V Department of Human Resources 98 CSE 1509 Chess 

Mark Steven Goodwin V Department of Human Resources 98 CSE 1510 Gray 

William R Cameron V Department of Human Resources 98CSE1512 Gray 

Dennis M McDonald v Department of Human Resources 98 CSE 1513 Morrison 

James Otis Masters V Department of Human Resources 98 CSE 1514 Owens 

Paul R Simon V Depanment of Human Resources 98 CSE 1515 Phipps 

Grady Harold Reasor V Department of Human Resources 98 CSE 1519 Chess 

Alejo J Heller V Department of Human Resources 98 CSE 1520 Gray 

Ronnie F Davis v Department of Health & Human Sen ices 98 CSE 1523 Owens 

Paul Monroe Covington V Department of Health & Human Sen ices 98 CSE 1524 Phipps 

Eugene B Patton 111 v Department of Human Resources 98 CSE 1548 Smith 

Gerald Pendergrass V Department of Human Resources 98 CSE 1570 Gray 

Leon McNair V Depanment of Human Resources 98 CSE 1573 Owens 

Harry C Rone Jr v Department of Human Resources 98 CSE 1576 Smith 

Cesar A Hernandez v Department of Health & Human Services 98 CSE 1580 Mann 

Ronald E Davis Jr V Department of Human Resources 98CSE1589 Reilly 

Douglas Sanders V Department of Human Resources 98 CSE 1606 Mann 

Travis Lamont Stevenson V Department of Human Resources 98 CSE 1609 Phipps 

Jada Ballard v Department of Human Resources 98 CSE 1614 Gray 

Reginald Mclver V Department of Human Resources 98 CSE 1629 Momson 

Mia Marisa Gionzales-Sisk v Department of Human Resources 98 CSE 1632 Reilly 

Robert EL Heck v Department of Health & Human Services 98 CSE 1660 Gray 

Bobhy L Mills V Department of Human Resources 98 CSE 1663 Mann 

Anthonv McRaev Department of Human Resources 98CSE1682 Reilly 

Dennis Wanen Everson V Department of Health & Human Services 98 CSE 1683 Smith 

AlbertusShawv Depanment of Health & Human Sen ices 98 CSE 1701 Momson 

Charles Anthonv Jacobs V Department of Human Resources 98 CSE 1714 Phipps 

Johnny Richardson V Department of Human Resources 98 CSE 1731 Smith 

Patricia Chambers V Department of Human Resources 96 DCS 1944 Mann 

Vickie E Lane V Michael 1, Adams, Depanment of Human Resources 96 DCS 2105 Gray 

Caria P Robinson v Departmentof Human Resources 97 DCS 0124 Reilly 



09/18/98 
10/09/98 
09/1 7/98 
07/30/98 
09/08/98 
09/08/98 
09/15/98 
07/29/98 
07/20/98 
08/06/98 
08/20/98 
09/08/98 
09/01/98 
11/18/98 
09/15/98 
10/09/98 
01/21/99 
01/21/99 
10/06/98 
11/19/98 
12/29/98 
12/11/98 
01/22/99 
01/22/99 
01/22/99 
02/08/99 
02/01/99 
02/01/99 
12/09/98 
01/19/99 
02/10/99 
02/01/99 
01/14/99 
12/28/98 
12/18/98 
01/19/99 
02/10/99 
02/09/99 
01/05/99 
01/14/99 
12/18/98 
02/09/99 
01/26/99 
02/01/99 
02/10/99 
01/25/99 
01/26/99 
02/09/99 
02/09/99 
02/01/99 
02/10/99 
12/29/98 
02/09/99 
01/26/99 
01/22/99 
02/11/99 
01/25/99 
01/13/99 
01/26/99 
01/26/99 
01/28/99 
02/10/99 
02/11/99 
02/02/99 
02/10/99 
01/20/99 
02/09/99 
02/11/99 
01/05/99 
01/19/99 
02/02/99 
01/26/99 
07/08/98 
11/10/98 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1483 



CONTESTED CASE DECISIONS 



AGENCY 

Rachel D Farmer v Department of Health & Human Services 
Janice Scott Padgett (Fisher) v Department of Human Resources 
Barbara Fanta-Blandme v Department of Human Resources 
Sharon Brim v Department of Health & Human Services 
Karen White v Department of Human Resources 
Sherrv L Hampton v Department of Human Resources 
Terita M Sharpe v Department of Human Resources 
Shensse Stancel Kelly v Department of Human Resources 
Melanie D Nickerson v Department of Health & Human Services 
Ruth McFadden v Department of Human Resources 

Division of Women 's and Children 's Health 

Khamis A Sirhan v DHHS. Women's/Children's Health, Nutrition Svcs. 
Joseph A Navvas V DHHS. Women's/Children's Health. Nutrition Svcs 
Mohamad 1 Rahman v DHHS. Womens/Childrens HIth. Nutr Svcs Sect 
Evelyn Powell v Nutrition Services Section 

HUMAN RELATIONS COMMISSION 

NC Human Relations Comm Ex Rel Clarice Dial v Dixie Lee Newsome. 
Jetti Lee, Jackie Lee and Erwin Judd 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


97 DCS 0251 


Phipps 


08/31/98 




97 DCS 1219 


Smith 


07/29/98 




97 DCS 1486 


Morrison 


06/22/98 




97 DCS 1574 


Grav 


08/04/98 




98 DCS 0053 


Chess 


12/14/98 




98 DCS 0257 


Morrison 


12/01/98 




98 DCS 0468 


Morrison 


06/09/98 




98 DCS 0508 


Mann 


12/16/98 




98 DCS 0593 


Gray 


01/19/99 




98 DCS 0675 


Reilly 


07/15/98 




98DHR0219 


Reilly 


08/11/98 




98DHR0637 


Phipps 


07/02/98 




98 DHR 0923 


Chess 


11/06/98 




98DHR 1135 


Smith 


11/13/98 




98HRC 1063 


Smith 


01/21/99 


13 16 NCR 1369 



JUSTICE 

James Todd Tippet v NC Company Police Program 

Alarm Systems Licensing Board 

Claude David Huggins v Alarm Systems Licensing Board 
Jay Michael RatclitTv Alarm Systems Licensing Board 
Robert Derek Ross v Alami Systems Licensing Board 
Randy Keith Barr v Alarm Systems Licensing Board 
Barry D Lyman v Alarm Systems Licensing Board 

Auctioneer Licensing Board 

Wiley R Tyndall v Auctioneer Licensing Board 
Gavin Haviv Abadi v Auctioneer Licensing Board 

Education and Training Standards Division 

Thomas Dwayne Brown v SheritTs' Education & Training Standards Comm 
Kenneth Joseph Jackson v Sheriffs' Education & Training Standards Comm 
Odis Fitzgerald Darden v Sheriffs' Education & Training Standards Comm 
Hoyle Kenneth Wise. Jr v SheritTs' Education & Training Standards Comm 
Kenneth Earl Brantley v Criminal Justice Ed & Training Stds Comm 
Hearl Oxendme v Criminal Justice Education & Training Stds Comm 
James Fartell Roberts v Criminal Justice Education & Training Stds Comm 
Phillip Keith McPherson v SheritTs' Education & Training Standards Comm 
Daryl LaMar Bryant v SheritTs' Education & Training Standards Comm 
Harold F Esters v SheritTs' Education & Training Standards Comm 
William Scott Key v SheritTs' Education & Training Standards Comm 
Cecil W Duke. Jr v Criminal Justice Education & Training Stds Comm 
Marvin Shernel Clark v Department of Cortection 
and 
Marvin S Clark v Criminal Justice Ed & Training Stds Comm 
Amado Martinez v Criminal Justice Education & Training Stds Comm 
Johnny Wayne Wills v Cnminal Justice Education & Training Stds Comm 
James E Ellerbe v SheritTs' Education & Training Standards Comm 
Paul Harvey Taylor v, DOJ. Criminal Justice Ed & Training Stds Comm 
Kenneth Joseph Jackson v SherilTs' Education & Training Standards Comm 
Kelly Suzanne Mayberry v SheritTs' Education & Training Stds Comm 
Sharon Day Herting v SheritTs' Education & Training Stds Comm 
Robert Ryan Hardison v SheritTs' Education & Training Standards Comm 
Tracey Jerome Clark v SheritTs' Education & Training Standards Comm 
Berry Bernard Baker v Criminal Justice Ed & Training Standards Comm 
Evelyn D Brown v SheritTs' Education & Training Stds Comm 
Kevin Lamar Dorsey v Sheriffs' Education & Training Standards Comm 
Willoughby McCormick. Jr v Sheriffs' Ed & Training Standards Comm 
Herman Lee Colvm v SheritTs' Ed & Training Standards Comm 
Ronald Hosea Hodge v Criminal Justice Ed & Training Standards Comm 
Melvin Garfield Smith v Criminal Justice Ed & Training Stds Comm 
Paul Harvey Taylor v Criminal Justice Ed & Training Stds Comm 
Phillip K McPherson v SheritTs' Education & Training Standards Comm 
Frankie Arlene Fisher V SheritTs' Ed & Training Standards Comm 
Floyd Lee Hatch v Cnmmal Justice Ed & Training Stds Comm 
Tartie L Reid v Cnmmal Justice Ed & Training Stds Comm 



97 DOJ 1368 


Phipps 


09/10/98 




98 DOJ 0871 


Morrison 


07/09/98 




98 DOJ 1 345 


Owens 


11/19/98 




98 DOJ 1 494 


Morrison 


12/10/98 




98 DOJ 1495 


Smith 


02/05/99 




98 DOJ 1 496 


Smith 


12/16/98 




97 DOJ 1 236 


Phipps 


07/24/98 




98 DOJ 1060 


Smith 


10/21/98 




97 DOJ 1319 


Phipps 


07/29/98 




97 DOJ 1578*' 


Gray 


08/20/98 




97 DOJ 1698 


Reilly 


06/12/98 




98 DOJ 0022 


Smith 


07/14/98 




98 DOJ 0046 


Gray 


11/04/98 


13 11 NCR 


98 DOJ 0121 


Smith 


06/22/98 




98 DOJ 0147 


Smith 


07/16/98 




98 DOJ 0388 


Reilly 


07/24/98 




98 DOJ 0430 


Gray 


07/21/98 




98 DOJ 0431 


Gray 


08/21/98 




98 DOJ 0432 


Becton 


06/08/98 




98 DOJ 0479 


Chess 


10/07/98 




98 DOJ 0491*'" 


Phipps 


01/08/99 




98 DOJ 0526 


Mortison 


09/09/98 




98 DOJ 0574 


Chess 


07/30/98 




98 DOJ 0600 


Morrison 


08/07/98 




98 DOJ 0841 


Phipps 


09/16/98 




98 DOJ 0847*" 


Gray 


08/20/98 




98 DOJ 0875 


Chess 


11/13/98 




98 DOJ 0877 


Mann 


12/30/98 




98 DOJ 0878 


Phipps 


09/08/98 




98 DOJ 0879 


Owens 


08/31/98 




98 DOJ 0907 


Mann 


01/15/99 




98 DOJ 0922 


Mann 


12/22/98 




98 DOJ 0930 


Phipps 


09/22/98 




98 DOJ 1 007 


Reilly 


10/13/98 




98 DOJ 1 008 


Smith 


01/07/99 




98 DOJ 1058 


Smith 


01/08/99 




98 DOJ 1059 


Gray 


01/04/99 




98 DOJ 1125 


Phipps 


1 2/30/98 




98 DOJ 1 360 


Gray 


01/28/99 




98 DOJ 1421 


Chess 


01/06/99 




98 DOJ 1441 


Reilly 


02/10/99 




98 DOJ 1623 


Chess 


01/13/99 





935 



Private Protective Services Board 



14H4 



NORTH CAROLINA REGISTER 



March 7. 1999 



13:17 



CONTESTED CASE DECISIONS 



AGENO 

Wa\ne Care\ v Private Protective Ser\ ices Board 
Claims Verification. Inc v Private Protective Sersices Board 
Walter R Shirer \ Private Protective Ser\ ices Board 
Stacey L Williams v Private Protective Services Board 
Eugene Norman Garrett v Private Protective Services Board 
G Russell Smith v Private Protective Ser\ ices Board 
DavidC Brisson v Private Protective Services Board 
Danny Charles Garrett v Private Protective Serv ices Board 
David C Truesdale v Private Protective Services Board 
Dennis Ray Hyatt v Private Protective Services Board 
Alfred D Malson v Private Protective Ser\ ices Board 
Rodney Hamilton Marsh v Private Protective Sen ices Board 
Melvin Eugene Davis v Private Protective Services Board 
Glen Leon Fitchette v Private Protective Services Board 
Arvin Itvvaru v Private Protective Services Board 
William Pope v Private Protective Services Board 

LABOR 

Hildreth Mechanical & Maintenance v Labor/Labor Standards 
Labor World. Eric Feinstein v Labor. Harry E Payne. Jr 

BOARD OF MEDICAL EXAMINERS 

Joe D Crawford. M D v Medical Bd of NC Bd of Medical Examiners 

PLBLK INSTRLCTION 

Linda & Danny Howard forNikki Howard v Lenoir CtyBd of Ed 
George & Ruth Sinclair for Adam Sinclair v Wake Count\- Schools 

(Special Education Services) 
Nicholas Eirschele, By and Throught His Parents. Charles & Kathleen 

Eirschele v Craven Counrv Board of Education 
Dewitt Brinson & Elizabeth Brinson v Craven County Board of Education 
Gene Edward Lloyd v Department of Public Instruction 
Joseph Hughey Barringer v Dr Michael Ward. Dept of Public Instruction 
Mrs Phvllis Y Moore v Cumberland Count\ Schools 
Lanev Bruce Harrill v State Board of Education 

L K on behalf of her son, J H . as well as on her own behalf v St Bd /Ed 
Joseph J Sarrerro V Department of Public Instruction 
M E and her husband. PL individuallv. and on behalf of their son. C E 

V Bd of Ed for Buncombe Ct\ a/k/a Buncombe Ct> Public Schools, et al 



CASE 




DATE OF 


MMBER 


AU 


DECISION 


98DOJ0619 


Owens 


11/19/98 


98 DOJ 0848 


Smith 


08/04/98 


98 DOJ 0937 


Morrison 


09/17/98 


98 DOJ 0938 


Morrison 


08/18/98 


98 DOJ 0939 


Morrison 


08/18/98 


98 DOJ 0940 


Owens 


11/19/98 


98 DOJ 094 1 


Owens 


11/19/98 


98 DOJ 1081 


Morrison 


09/17/98 


98 DOJ 1 082 


Morrison 


12/10/98 


98 DOJ 1 1 39 


Owens 


11/19/98 


98 DOJ 1141 


Morrison 


09/29/98 


98 DOJ 1 1 42 


Owens 


11/04/98 


98 DOJ 1145 


Morrison 


09/22/98 


98 DOJ 1 307 


Owens 


1 1 /03/98 


98 DOJ 1 493 


Morrison 


12/10/98 


98 DOJ 1 748 


Morrison 


02/09/99 


98 DOE 0903 


Mann 


11/04/98 


98DOL 1256 


Gray 


11/05/98 


98 BME 087U 


Owens 


07/30/98 


97 EDC 1 047 


Grav 


1 0/30/98 


97EDC 1233 


Phipps 


08/11/98 


97 EDC 1234 


Phipps 


07/16/98 


97 EDC 1298 


Phipps 


10/26/98 


98 EDC 01 10 


Reillv 


09/10/98 


98 EDC 0127 


Mann 


01/14/99 


98 EDC 0305 


Grav 


08/05/98 


98 EDC 0350 


Smith 


09/17/98 


98 EDC 0370 


Smith 


10/14/98 


98 EDC 0459 


Owens 


08/10/98 


98 EDC 0566 


Grav 


10/01/98 



PIBLISHED DECISION 
REGISTER CITATION 



STATE BAR 

Linda R Sharp v North Carolina State Bar 



98 BAR 1344 



Morrison 



1 1 /09/98 



STATE PERSONNEL 



Department of Administration 

David Cingsby v NC Commission of Indian AtLairs 

Community Colleges 

Dr William R Strickland v NC Communitv College System 

Department of Correction 

Annie D Dizon v NC Correctional (Inst ) Center for Women 

Terrv T Rees v Department of Correction 

Mohammad H Baloch. M D v Depanmenl of Correction 

Leon Owens v Department of Correction 

Terrv T Rees v Department of Correction 

Michael A Smith v Department of Correction 

Michael A Smith v Department of Correction 

Jayne D Bledsoe v Correction. Div of Adult Probation & Parole 

David Spencer Norris v Correction. Div of Adult Probation & Parole 

Carl W Craven, II v Pender Correctional Institution 

En in Shaw v Martin Homer. Asst Super . Corr . Sandy Ridge Corr Ctr 

Joseph Szilagvi v Department of Correction 

Dennis S Harrell v Dept of Correction, Caledonia Correctional Institute 

Tommv L Hancock v Department of Correction 

Tommv L Hancock v Department of Correction 

Bertha Darden V Raymond Smith & Dept of Correction, Central Prison 

Robert C Lowder v Brown Creek Correctional Institution 

Ruth Moseley v Department of Correction 

Lamont M Burt v Depanment of Correction 

Mark Murphy v Correction, Div of Adult Probation & Parole 

Leo Powell v Harnett Correctional Institute, Department of Correction 

Amos Boone v Department of Correction 



98 OSP 0428 


Morrison 


12/14/98 


98 0SP 1305 


Gray 


1 2/07/98 


97 OSP 0166 


Mann 


1 1 /06/98 


97 OSP I671»' 


Smith 


06/30/98 


98 OSP 0014 


Grav 


09/01/98 


98 OSP 0050 


Becton 


07/10/98 


98OSP01l9»' 


Smith 


06/30/98 


98 OSP 0231*' 


Reilly 


08/11/98 


98 OSP 03 17*" 


Reilly 


08/11/98 


98 OSP 0543 


Owens 


07/29/98 


98 OSP 0572 


Grav 


12/18/98 


98 OSP 0633 


Smith 


06/25/98 


98 OSP 0671 


Phipps 


1 0/09/98 


98 OSP 0757 


Owens 


1 0/05/98 


98 OSP 0846 


Morrison 


09/08/98 


98 OSP 0881 


Owens 


08/04/98 


98 OSP 0882 


Owens 


1 0/09/98 


98 OSP 0905 


Smith 


09/25/98 


98 OSP 0984 


Owens 


12/02/98 


98 OSP 1 092 


Grav 


1 0/07/98 


98 OSP 1115 


Smith 


1 0/06/98 


98 OSP 1155 


Mann 


12/21/98 


98 OSP 1175 


Owens 


11/25/98 


98 OSP 1188 


Smith 


12/15/98 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1485 



CONTESTED CASE DECISIONS 



AGENCY 

Nona W Hubbard v DOC, Division of CommuniW Corrections 
Robert R Stovall v Departmenl ot Correction 
Harold Keith Hamm v Dept of Correction Enterprise/Personnel Off 
Joseph A Harrell v Correction, Div of Adult Probation & Parole 
Bunn> M Pomdexter v Departmentof Correction, McCain Hospital 
Deborah GrifTin v Warren Correctional Institution. Mr Smile\ 

Crime Control and Public Safety 

Roger D Davis v Crime Control & Public Safety, St Hvvy Patrol 
Albert R Little v Crime Control & Public Safet\, Info S\s Specialists 
Thomas E Carlton \ Crime Control & Public Safet>, St H\v\ Patrol 

Eastern North Carolina School for the Deaf 

Cath\ A Lancaster v Eastern North Carolina School for the Deaf 

Employment Security Commission 

Jane B Bolin and Arlene G Sellers v Employment Security Commission 
Jane B Bolin and Arlene G Sellers v Employment Security Commission 

Environment and Natural Resources 

Charles Anthony Bruce \ ENR. Division of Parks and Recreation 

Patrick K W Howie v Department of Environment and Natural Resources 

Health and Human Services 

Velma Harper \ Dept of Health & Human Sen ices, Caswell Center 

.Annette Honea v Department of Human Resources 

William David Simpson v Macon County Board of Health 

Angela M Miles v Cumberland County Department of Social Services 

Shung Fung-Chin v Department of Human Resources, Caswell Center 

Walker Cannon v DHR/Caswell Center 

Charity Svvick v Cumberland County Department of Social Services 

Yolandra Best and Roy Hudson v DHHS, John Umstead Hospital 

Yolandra Best and Roy Hudson \ DHHS. John Umstead Hospital 

Kenneth Dippel \ Columbus County Dept of Social Services 

Fred foster. Jr v Department of Health and Human Services 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holroyd v Montgomery Cty DSS, Children's Sen. ices 

Tilda D Whitaker v Nash County Health Department Board of Directors 

Fred Foster. Jr v Department of Health and Human Services 

James W Crews v DHHS, Murdoch Center 

Patricia R Quick v DHHS. Dorothea Di\ Hospital 

Angela M Miles \ Cumberland County Department of Social Senices 

Delores Laveme Rich v Health & Human Serv ices. Dorothea Dix Hosp 

Elwin C Munson v Health &. Human Serv ices. Juvenile Evaluation Center 

Fred Foster. Jr v Department of Health and Human Services 

Jackie M Sinclair v Duplm-Sampson .Area Mental Health DD. SAS 

David A Kilpatrick v Health & Human Services. Caswell Center 

Fred Foster. J r v Department of Health and Human Services 

Laura Blanton v Cleveland Center 

Anthony M Ruiz v Department of Health & Human Svcs. ^'outh Svcs 

Rudolph Waters v DHHS, Youth Services. Dobhs School 

Euwell Falconer v Karen A Andrews. Gaston-Lincoln Area Mental Health 

JetTrev L Williams \ Dorothea Dix Hospital 

Delores Laveme Rich v DHHS. Dorothea Dix Hospital 

Barbara Jean Paquette v Durham County (respondeat superior for the 

Durham County Public Library ) 
Linda Paige v Center Point Human Serv ices Forsylh Mental Health 

Forsylh industrial Systems 
Stanley K Strong \ Jimmy Summerville. Dobbs School. Youth Svcs 
Derrick Skinner v Health & Human Serv ices. Cherry Hospital 
Paul L Long \ Department of Health & Human Services 

Department of Insurance 

Patricia Ca,sey Rollins v Department of Insurance 

Department of Justice 

Linda Margaret Koss v State Bureau of Investigation 
Mar\ in Shcrriei Clark v Department of Correction 
and 
Marvin S Clark \ Criminal Justice Ed & Tramins Stds Comm 



CASE 




DATE OF 


PI BUSHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


98 0SPi:i4 


Owens 


10/27/98 




98 0SP 1282 


Phipps 


10/26/98 




98 0SP 1409 


Gray 


12/16/98 




98 0SP 1411 


Gray 


12/11/98 




98 0SP 1566 


Smith 


02/09/99 




98 0SP 1583 


Chess 


01/07/99 




97OSP0617 


Chess 


05/27/98 




97 OSP 1 1 57 


Morrison 


07/22/98 




98OSP09I9 


Phipps 


09/24/98 




98 OSP 0482 


Gray 


1 1 /30/98 




97 OSP 1122'' 


Chess 


06/02/98 




97 OSP 1134* 


Chess 


06/02/98 




98 OSP 0240 


Reilly 


06/08/98 




98 OSP 1240 


Reilly 


02/11/99 




96 OSP 0109 


Chess 


02/02/99 




96 OSP 0833 


Chess 


08/24/98 




97 OSP 0167 


Chess 


01/27/99 


13:17 NCR 1488 


97 OSP 0613*' 


Gray 


07/10/98 




97 OSP 0638*" 


Chess 


08/13/98 




97 OSP 073 1 


Phipps 


11/30/98 




97 OSP 0775 


Grav 


07/10/98 




97 OSP 0862*" 


Chess 


08/13/98 




97 OSP 0863*" 


Chess 


08/13/98 




97 OSP 0905 


Gray 


11/09/98 




97 OSP 1287*'- 


Smith 


08/20/98 




97 OSP 1530*'" 


Chess 


08/13/98 




97 OSP 1586 


Smith 


05/27/98 


13 02 NCR 257 


97 OSP 1665 


Gray 


12/02/98 




97 OSP 1701*'- 


Smith 


08/20/98 




98 OSP 0060 


Gray 


07/20/98 




98 OSP 0061 


Becton 


07/16/98 




98 OSP 0084*' 


Gray 


07/10/98 




98 OSP 0120 


Gray 


07/08/98 




98 OSP 0140 


Phipps 


10/28/98 




98 OSP 01 87*'- 


Smith 


08/20/98 




98 OSP 0252 


Smith 


12/31/98 




98 OSP 0271 


Owens 


08/13/98 




98 OSP 0403*'- 


Smith 


08/20/98 




98 OSP 0453 


Smith 


10/02/98 




98 OSP 0454 


Gray 


06/04/98 




98 OSP 0474 


Morrison 


07/30/98 




98 OSP 0538 


Reillv 


08/06/98 




98 OSP 0595 


Becton 


07/22/98 




98 OSP 0763 


Gray 


1 2/02/98 




98 OSP 0765 


Morrison 


08/05/98 





i 



98 OSP 08 19 



Smith 



11/05/98 



98 OSP 1017 


Gray 


12/07/98 


98 OSP 1035 


Grav 


09/21/98 


98 OSP 1202 


Owens 


12/16/98 


95 OSP 0729 


Chess 


12/14/98 


97 OSP 01 89 


Chess 


08/14/98 


98 OSP 0300*" 


Phipps 


01/08/99 



Consolidated Cases. 



1486 



NORTH CAROLINA REGISTER 



March I, 1999 



13:17 



CONTESTED CASE DECISIONS 



AGENO 



CASE 
MMBER ALJ 



DATE OF 
DECISION 



PIBLISHED DECISION 
REGISTER CITATION 



Department of Public Instruction 

Lillie Bumene Pearsall V Wayne Ct\ Bd ot'Ed.Mrs Veda McNair and 
Mr Steve Taylor 

Secretary of Stale 

Jonathan M Demers v Department of Secretan, of State 

Department of Transportation 

Pasquale Vendettuoli v Department of Transportation 

Johnny O Shivarv Department of Transportation 

Teresa G Mitchell v Department of Transportation 

Larn W Davis v Department of Transportation 

Sherrs Lynn Noles v Department of Transportation-NCDMV 

Clarice Goodwin Arthur v Department of Transportation, Kernes Division 

University of North Carolina 

Joseph A Bryant v North Carolina A & T University 

Joseph A Brvant v North Carolina A & T University 

Douglas Love, Jr v UNC Hospitals 

Deborah J Fenner v NC Central University 

Joyce M Smith v North Carolina Central University 

Eduin Swam v University of North Carolina at Chapel Hill 

Patricia A G Roberts \ Asst /Chan /Qtv Mgmt /Dir Human Res UNCW 

Leo Watford, Roosevelt Partis. Claiborne Baker, et al v University of 

North Carolina at Chapel Hill 
Johnny Johnson, Jr v A & T St University Student Union-Grievance Bd 
Jessie L Johnson \ Bernard K Locklear. L'NC at Pembroke 
Jonathan L Fann v North Carolina State University Physical Plant 
Greta M Hawlhome \ University of NC at Pembroke 
Robert W Brinson v NC State University 
Alberta A Ingram-Peterson v NC Central University 
Thomas H Hastye. Ill v NC A & T Stale University 
Fred T Jackson \ UNC-Charlotte Recreational Facilities 
Bern Parks \ Winston Salem State University 
Ronnie Bell \ Dave Hillard. UNC at Charlotte 
Brenda D Moore v Atty Wanda Jenkins. Fayetteville St University 
Joseph Carroll Goodlake v UNCA 

STATE TREASURER 

Hugh A Wells \ Consolidated Judicial Retirement System of NC, 

Bd of Trustees Teachers and State Lmployees' Retirement System 
Walter Williams V Bd of Trustees NC Local Gov Emp Retirement Sys 



98OSP0944 Smith 



97OSPI0I8 


Becton 


97OSPI090 


Mortison 


97 0SPI366 


Reillv 


97 0SP 1565 


Smith 


98OSP024I 


Grav 


98 OSP 0269 


Chess 


98OSP0864 


Phipps 


96 OSP 1698*" 


Mann 


97 OSP 0242*'" 


Mann 


97 OSP 0662 


Reillv 


97 OSP 0902 


Chess 


97 OSP 1297 


Smith 


97 OSP 1694 


Mortison 


98 OSP 01 78 


Phipps 


98 OSP 0254 


Chess 


98 OSP 0299 


Owens 


98 OSP 0444 


Grav 


98 OSP 0465 


Becton 


98 OSP 0831 


Chess 


98 OSP 0887 


Owens 


98 OSP 1024 


Smith 


98 OSP 1114 


Reillv 


98 OSP 1216 


Smith 


98 OSP 1278 


Chess 


98 OSP 1330 


Smith 


98 OSP 1506 


Smith 


98 OSP 1535 


Phipps 



98 DST 03 1 6 Morrison 

98DST0774 Smith 



08/25/98 



07/07/98 



12/19/98 
09/01/98 
12/09/98 
07/08/98 
08/11/98 
09/24/98 



1 2/02/98 
1 2/02/98 
06/08/98 
05/29/98 
06/25/98 
07/31/98 
10/08/98 
07/17/98 

09/02/98 
09/29/98 
07/17/98 
09/11/98 
08/10/98 
10/14/98 
1 2/30/98 
1 0/22/98 
11/25/98 
11/10/98 
01/25/99 
01/07/99 



06/05/98 
12/08/98 



13 03 NCR 343 



13 01 NCR 166 



TRANSPORTATION 

Da\ id Warren Dew et al 



v Motor Vehicles, Alexander Killens Comm 



I NIVERSIT\ OF NORTH CAROLINA 

Patricia D Hall v Llniversity of North Carolina at Chapel Hill 
Ladonna P James v UNC Hospitals 
Joyceline Sellars v UNC Hospitals 



95 DOT 1144 


Gray 


06/04/98 


98 UNC 0397 


Reillv 


08/20/98 


98 UNC 0591 


Becton 


07/20/98 


98 UNC 1113 


Smith 


1 0/22/98 



13:17 



NORTH CAROLINA REGISTER 



March 1, 1999 



1487 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MACON 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

97OSP0167 



WILLIAM DAVID SIMPSON, 

Petitioner, 



MACON COUNTY BOARD OF HEALTH, 

Respondent. 




This matter came on for hearing before the administrative law judge presiding commencing on June 30, 1998, and 
continuing through July 3. 1998 in Franklin, North Carolina, and commencing on December 2, 1998 and continuing through 
December 9, 1998 in Hendersonville, North Carolina. The Court, after having heard all the evidence in this case, considered the 
arguments of Counsel, examined all the Exhibits, and reviewed the relevant law, makes the following findings of fact, by a 
preponderance of the evidence, enters its conclusions of law thereon, and makes the following recommended decision. 

APPEARANCES 

For Petitioner: Barbara Goldstein 

Post Office Box 1 924 
Sylva, North Carolina 28779 

David Voerman 

Post Office Box 12485 

New Bern. North Carolina 28561-2485 

For Respondent; Van Winkle, Buck, Wall, Stames and Davis, P.A. 

Jones P. Byrd 
Michelle Rippon 
Post Office Box 7376 
Asheville, North Carolina 28802 

ISSUE 

Did Respondent have just cause to terminate Petitioner? 

FINDINGS OF FACT 

1. Petitioner herein, William David Simpson, is former Health Director in Macon County. He served as an 
employee of the Macon County Health Department from 1967 to 1996. In 1975, he was appointed Director of the Macon County 
Health Department. 

2. Petitioner is a lifelong citizen of Macon Countv'. Macon County is a rural mountain county located in the 
western part of the State of North Carolina, with a population of approximately 27,000 people. The county seat of Macon County 
is Franklin, and the Petitioner was bom and raised in Franklin, North Carolina. His family owns a family business in Franklin 
called Simpson Oil Company. 

3. During the course of his employment as a Director of Macon County Health Department, the Petitioner has 
received no disciplinary warnings, actions, or incidents. He was nominated as Health Director of the year in the State of North 
Carolina by the sitting Board of Health on June 8, 1995. (Petitioner's Exhibit Number 1 7). His evaluations during his tenure as 
Health Director were always exemplary, and there were no incidents of unsatisfactory performance cited in his evaluations. 

4. In 1995, the chairman of the Macon County Board of Health was Dr. Fisher. The vice chairman was Dolan 
Bates. Other members of the Board of Health at that time included Mr. Michael Cummings, a pharmacist, Mr. Al Ledford, Dr. 
King, and various other individuals. 



1488 



NORTH CAROLINA REGISTER 



March 1, 1999 



13:17 



CONTESTED CASE DECISIONS 



5. Commencing approximately in the middle of 1995, and including and continuing through the end of 1996. many 
of these members of the Board of Health were replaced. New members who were appointed to the board during this period of 
time, included Terry Dalton, Sutton Russell, George Sweet. Mack Stanfield, Bob Richardson, and John Hamm. 

6. Because of the Petitioner's lifelong residence in Macon County, and specifically in the town of Franklin, he had 
contact, over the period of time that he was Director of the Health Department, with the vast majority of citizens in Macon County. 
Macon County, being a small rural mountain county, is the t\'pe of geographical location where just about ever\one knew 
everyone else, and where just about everyone had business with the county, at one time or another, and in one fashion or another. 

7. At the time of the events complained of in this petition. Petitioner had appro.\imatel> 360 months of continuous 
state employment, and was a pay grade 73. He is a career state employee as defined under Chapter 126 of the North Carolina 
General Statutes. 

8. During the year 1996, and specifically starting in April of 1996, the Board of Health, in Macon County, began to 
have some concerns in respect to matters concerning the Petitioner's tenure as Health Director. These concerns centered around a 
trip to Clavton, Georgia, payments to an architect for the expansion of the Health Department, and allegations concerning personal 
loans which the Petitioner has obtained from various individuals located in Macon County. 

9. On or about September 30. 1996, the Board of Health caused the Petitioner to be placed on investigator) leave 
with pay pending and investigation into these and other matters. The board requested the State Bureau of Investigation to conduct 
this investigation, and coordinated the investigation with the District Attome> 's office. The leave with pay status for the Petitioner 
was extended on three different occasions so that it was scheduled to expire on January 13, 1997. 

10. Throughout the fall of 1996, State Bureau of Investigation Agent Ned Whidmire conducted an investigation into 
certain alleged activities of the Petitioner herein. He interviewed many individuals, and provided information by way of feedback 
to the Board of Health concerning this findings. In late November of 1 996, and into early December of 1996, he met with most of 
the members of the Board of Health to advise them of the results of the investigation. 

11. On December 13. 1998, prior to the completion of the entire SBI investigation, the Board issued the Petitioner a 
"pre-dismissal" letter, alleging that he had engaged in conduct which constituted grossly unacceptable job performance, and/or 
unacceptable personal conduct. 

12. The pre-dismissal conference was continued, but eventually the Petitioner appeared before the Board of Health 
on January' 9, 1997, with his attorney, at the "pre-dismissal conference". 

13. Prior to this pre-dismissal conference, the Petitioner's attorney had written to the attorney for the Board of 
Health requesting that the pre-dismissal conference be continued until the SBI investigation could be completed, and had also 
requested more specificity in respect to the matters set forth in the pre-dismissal notice so the Petitioner could adequately respond 
thereto. (See Petitioner's Exhibit Number 4). 

14. At the pre-dismissal conference, the Petitioner's attorney again requested that the matter not be heard because of 
the pending SBI investigation. He requested more specificity in respect to the charges and indicated that Petitioner could not 
respond adequately due to the pending SBI investigation, and the need to exercise his rights under the fifth amendment of the 
United States Constitution. (See transcript of pre-dismissal conference. Petitioner's Exhibit Number 28). 

15. The Board denied these requests, terminated the pre-dismissal conference, and met on January 13, 1997. At 
that meeting, a vote was taken, and Petitioner was dismissed from his employment. 

16. After the vote was taken by the Board. Chairman Terry Dalton, County Manager Sam Greenwood, and Attomey 
Richard Jones dictated a dismissal letter, which specified certain allegations which the Board alleged constituted the basis for the 
dismissal of the Petitioner herein. These allegations are as follows: 

1. Conduct for which no reasonable person should expect to receive prior warning, in the following 

particulars: 

A. Your statement made to then Chairman Ledford at the September 1 0, 1 996, meeting that, other 

than the instance of your borrowing from James Keener the sum of $400, as represented by your noted 
dated March 22, 1994, there were no other instances in which \ou borrowed monies from individuals 



13:17 NORTH CAROLINA REGISTER March 1,1999 1489 



CONTESTED CASE DECISIONS 



or businesses which you or Macon County Health Department regulated. This statement was found to 
be untrue when it was determined that you had borrowed money from the following individuals: Eric 
Townson, Al Byers, Lou Capaforte, Mrs. Neville Bryson. Anna Belle Houston and Sue Dean. 

B. Your removal from the Macon County Building and Inspection Department of the inspections 
file concerning the permitting of improvements for the Jones-Holt property on Highway 23-441 North 
of Franklin, North Carolina on or about February 23, 1995. 

C. Your removal from the Macon County Health Department of the files, maps and other 
information identified for you in the letter dated October 31, 1996, from County Attorney R. S. Jones, 
Jr. 

D. Your discussions with and instructions to Mr. Eric Townson, between December of 1993 
through April of 1996, which lead to the preparation of plans and architectural drawings in connection 
with the proposed Health Department expansion which were for improvements costing far in excess of 
available funds or funds committed for the project, all without the knowledge or consent of the Board 
of Health or of the Macon County Board of Commissioners. 

E. Your failure to observe and abide by established county policies in the following respects: 

(1) Your use of the county automobile to make a personal trip out-of-state, on or about 
March 11,1 996. 

(2) Your removal from the premises of the Macon County Health Department, for the 
personal use, of Health Department property, consisting of, among other things, a camcorder 
and notebook computer, which were not returned until October of 1996. 

(3 ) You conducting your personal affairs during regular work hours at the Macon County 
Health Department by, among other things allowing your personal debtors to make collection 
calls to Health Department personnel and to yourself, and your accepting visits from debt 
collectors, representatives of banks and other non-Health Department related individuals. 

(4) Your failure to maintain an appropriate supervisory relationship with employees 
under your direct supervision in that you conducted an improper relationship with Cynthia H. 
Kinsland. 

(5) Your failure to maintain or cause to be maintained complete personnel files on all 
employees of your department in the office of the County Manager as required by county 
policies. 

2. Job related conduct which constitutes a violation of state or federal law in that: 

a. You did violate N.C.G.S. § 159-181 by submitting for payment with your approval and 
authorization invoices for architectural services which were in excess of funds of budgeted and/or 
authorized by contract. In particular the invoices submitted by Eric Townson, AIA under date of May 
6, 1 996, requesting payment of $ 1 2,500 which was paid. 

b. You did authorize and direct the transfer of 200 units of Flu Vaccine, the property of Macon 
County Health Department having a value of approximately $500, to the Highlands-Cashiers Hospital, 
without compensation or reimbursement therefore, and without documentation supporting this transfer 
and further without express authority of the Macon County Board of Health during the Fall Flu Seasons 
of 1994 and 1995. (See Petitioner's Exhibit Number 1). 

17. Prior to the receipt of the Dismissal Letter, the Petitioner had received no warnings under the State Personnel 
Act for alleged instances of failure in respect to the performance of his duties. The dismissal letter delineated all allegations in 
terms of "unacceptable personal conduct." (See Exhibit Number 1.) 

18. The Petitioner duly filed this petition for a contested case, and the matter has been before this Court for 



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determination since February of 1997. 

1 9. The factual matters for each specific allegation contained in the pre-dismissal letter will now be addressed by the 

Court: 

ALLEGATION #1A 

1. The Board of Health held a meeting on September 10. 1996 and went into executive session. The purpose for 
going into the executive session was to talk with the Petitioner concerning two matters: 1 ) his use of a county car for his 
trip to Cla>1on, Georgia on March 1 1, 1996, and 2) the Petitioner's borrowing $400 from James Keener, on March 22, 1994, when 
Kenner was a septic tank installer in Macon County. 

2. The issue concerning the trip to Clayton, Georgia came up before, in the spring of 1996. The issue concerning 
the borrowing of money from James Keener was brought to the board's attention, after an unknown person left a copy of a 
promissop. note from the Petitioner to James Keener in Chairman Dalton's pickup truck. 

3. During the course of this meeting on September 10. 1996. Chairman Al Ledford specifically inquired of the 
Petitioner as to "whether there were any more of these loans out there". 

4. Chairman Ledford testified, during the course of the proceedings in this case, that he meant, by that question, 
whether there were any more loans from septic tank installers since Keener was a septic installer in Macon County. 

5. This was confirmed by Mike Cummings. who also testified during the course of proceedings in this case. 

6. The Petitioner understood the question to be addressed solely to septic tank installers. 

7. The Petitioner answered the question "No" in that he was replying that he did not know of any loans from septic 
installers other than James Keener. 

8. Other members of the board, including George Sweet, testified during the course of the proceedings that they 
understood Chairman Ledford's question to address any other loans. The best evidence of what the question addressed is what the 
propounder intended and what the recipient understood it to address. 

9. While George Sweet testified that he also asked Simpson about other loans during the course of this 
conversation, it is the statement of Chairman Ledford that is referenced in the dismissal letter and relevant to the inquiry in this 
case. 

10. The Petitioner had advised prior Health Board members, including Dr. Fisher. Dolan Bates, and other members 
of the board concerning the necessity of his borrowing money from individuals that he knew in the community during the years 
1994 and 1995. 

1 1. Petitioner had borrowed money from individuals who were his friends, with the knowledge and consent of the 
Board of Health. The\ were: Eric Townson. Al Byers. Mr. Br>son. Annabelle Houston, and Sue Dean. 

12. All of these individuals testified that they loaned the Petitioner mone> because of their personal relationship 
with him. 

13. There is no evidence that anN of these individuals received any favor, gift, or preferential treatment in dealing 
with the Health Department. None was a septic tank installers. (See Petitioner's Exhibit Number 25). 

14. Kenner knew the Petitioner for thirt>' (30) years. Keener made loans to people and required them to pa> interest. 
and sign notes. In respect to the Petitioner, this procedure was followed, and the loan was repaid with interest. 

15. Townson knew the Petitioner for eighteen (18) years. Again, he charged interest on the loan, and the Petitioner 
repaid him w ith interest. 

16. Al B\ers knew the Petitioner for some period of time because he was the CEO of the Highlands-Cashiers 
Hospital. The Byers loan was repaid with interest. 



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17. Sue Dean knew the Petitioner for forty-six (46) years. She made the Petitioner a loan, and it was repaid with 
interest. 

18. Annabelle Houston knew the Petitioner for thirty (30) years. She was repaid with interest. 

19. Mr Lou Capaforte, and Neville Bryson never loaned the Petitioner any money. 

20. The dismissal letter does not specifically accuse the Petitioner, in paragraph lA, of making illegal or improper 
loans. 

21. The dismissal letter, in paragraph 1 A. accuses the Petitioner of making an untruthful statement to the Board of 
Health on September 10. 1996. 

22. The Petitioner sought and received permission from the Chairman and Vice Chairman of the Board of Health to 
talk with some of his friends to try to obtain needed loans. 

23. There is no competent evidence that any of the individuals from whom the Petitioner obtained loans received 
any favorable treatment, benefit or "quid pro quo" from the Macon County Health Department or Petitioner in return for their 
extension of a personal loan to Petitioner. 

ALLEGATION #1B 

1 . The Macon County Building and Inspection Department was headed during the period of time in question, 
February 23, 1995, by Mr. Bill Cook. 

2. It is alleged that the Health Director removed, improperly, a file concerning the "Jones-Holt property" fi'om this 
department on or about Februar\' 23, 1995. 

3. Bill Cook testified during the course of the trial in this case that the file had disappeared from the Health 
Department, but he had absolutely no evidence that the Petitioner has removed it. On the date the file was suppose to have been 
removed improperly, Mr. Cook testified that the Petitioner asked for a copy of the file and he gave Petitioner a copy. 

ALLEGATION #1C 

1. The matters set forth in allegation IC concern the alleged removal of certain files and maps identified in the 
letter dated October 31,1 996 from County Attorney R. S. Jones, Jr. 

2. The files, maps, and other information were not stated or identified in the dismissal letter. 

3. The Respondents are required to identify the specific information which they alleged to have been removed from 
the Health Department in the dismissal letter, in accordance with the holdings of Employment Security Commission of North 
Carolina y. Wells , 50 N.C. App. 389( 1981 ), and Mvers y. Department of Human Resources . 92 N.C. App. 123. cert, denied, 324 
N.C. 247(1989). 

4. The Petitioner did not intentionally remove the personnel file of Vicki Provencher when he left the Health 
Department on September 30, 1 996. This file was returned after the Petitioner realized he had it in his possession. 

5. Removal of any files, maps, or other matters from the Health Department by the Petitioner was inadvertent, and 
was done due to the short notice Petitioner was given to pack and leave the premises. 

ALLEGATIONS #ID 

1. The Macon County Health Department was engaged in an expansion project from 1993 through the middle of 
1996. This expansion project involved a substantial expansion of the Health Department's facility. 

2. The present Health Department facility was built some years ago. Mr. Eric Townson. a qualified architect from 
an adjoining county, was the architect. 



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3. Townson has been involved in the architectural plans and drawings for a number of governmental expansion 
projects in the Western North Carolina. He is a qualified architect, and an expert in the field of architectural planning for 
governmental expansion projects, and the costs thereof. 

4. Townson originally entered into a contract with the Macon County Board of Commissioners which set his 
architectural fee at a percentage basis of eight percent (8%), based upon an expansion project costing $500,000.00. 

5. The normal architectural fee for governmental expansion projects is a percentage of the overall cost of the 
project. As the project increases in cost, the percentage generally decreases. 

6. It was originally contemplated that the Health Department expansion in Macon County would be a two-story 
addition. The county originally budgeted $500,000.00 from the county for this project. It was contemplated that various grants 
would be obtained by the Health Department to supplement the funds provided for from the county, in order to finance this 
operation. 

7. The original approval of $500,000.00 and the architectural fee based thereon was in no way contemplated to be 
the final cost of the project or the final amount that would be available to complete the project. It was contemplated by the Board 
of Health, and others that the project would be built based upon all available funds that could be found. 

8. From December of 1993 until April of 1996. the Petitioner herein with the full knowledge and consent of the 
Board of Health, engaged in various activities to tr> to carr> out the expansion project. 

9. An estimated cost for the expansion of $1.5 million was submitted by Mr. Townson. which would have 
increased his architectural fee substantially. Additional budgets of $800,000.00. and $1 .08 million were submitted for the project. 
(See Petitioner's Exhibits #30). 

10. The plans and drawings were changed on at least two or three occasions. 

11. The Petitioner applied for the various grants that he needed (See Petitioner's Exhibit Number II). and as 
evidenced by the minutes of the Board of Health meetings, kept the Board of Health informed about what was going on. (See 
Petitioner's E.xhibit Number 3,6). 

12. Sometime in the Spring of 1996, after Terry Dalton came on the Board of Health, a controversy arose regarding 
the payments for these architectural fees. 

13. In respect to the allegations contained in this paragraph, the Court finds that the Petitioner has demonstrated, by 
a preponderance of the evidence, that he kept the Board of Health and the Macon Count) Board of Commissioners informed 
concerning the architectural plans and drawings. 

14. He sought their approval and obtained approval for funds to be paid to the architect for the preparation of these 
plans and drawings at the Macon County Board of Commissioners meetings (See minutes of Board of Commissioner meeting of 7 
November 1995. Petitioner's Exhibit #15). 

ALLEGATION #1E 

Allegation IE contains five separate sub parts, which allege violation of count> policies in respect to particular matters. 
These will be addressed in order: 

Allegation lElU 

1 . On the morning of March 1 1 . 1 996. the Petitioner herein was contacted by Mr. Fred Munger. who is the County 
Commissioner and liaison to the Macon County Board of Health from the County Commissioners. 

2. At that time, the Macon County Board of Health was in the process of moving into certain facilities located at 
the old Highlands-Cashiers Hospital. Mr. Munger had been tasked by the Board of Health with the responsibility of coordinating 
this project with the Petitioner. 

3. Mr. Munger wanted to meet the Petitioner at the Highlands-Cashiers facilitv' in order to go over those plans. 



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However, Mr. Munger's daughter had a doctor's appointment that afternoon, and he had to have this meeting at a certain time. 

4. The Petitioner advised Mr. Munger that he had some personal business in Clayton, Georgia that he needed to 
take care of during the middle of the day. He told Mr. Munger that it would be necessary for him to take the county car home, 
obtain his personal vehicle, go to Clayton, Georgia, come back to Franklin and get the county car and drive to Highlands-Cashiers. 
He indicated to Mr. Munger that he could not meet him at the time requested but would meet him later in the day. 

5. Mr. Munger told him that the time that he had set was the only time that he could meet Petitioner and that the 
Petitioner needed to take the county vehicle to Clayton, Georgia, take care of his business, then drive to Cashiers, and meet Mr. 
Munger at the facility. 

6. The Petitioner protested that he did not want to get in any trouble concerning his mileage and the use of the 
county vehicle. Mr. Munger assured him that there would be no difficulty whatsoever with this, and that he needed to do it in 
order to meet Mr. Munger. 

7. In accordance with these instructions. Petitioner went to Clayton, Georgia, did some personal business with the 
bank, and, in accordance with Mr. Munger's instructions, then drove to Cashiers and met Mr. Munger at the facility. Clayton, 
Georgia is located a short distance, just over the state line, from Franklin. North Carolina. 

8. Both the Petitioner and Mr. Munger were seen at the Highlands-Cashiers Hospital by Claudette Burston, who 
worked there. She saw them on the afternoon in question. 

9. Subsequently, it was discovered that the Petitioner had been followed to Clayton by a citizen who was interested 
in the outcome of the Vicki Provencher firing case. This citizen made a report concerning this trip to the Board of Health, and it 
appeared in the newspapers in Macon County in approximately April of 1996. 

10. The Macon County Board of Health dealt with this issue on several occasions, including specifically on 
September 1 0, 1 996. At the September 1 0, 1 996 meeting the Board of Health took a vote and decided to require the Petitioner to 
repay the county $1 5.00 for using the county vehicle to go to Clayton, Georgia, and to place a reprimand in his file. 

ALLEGATION 1E(2) 

1 . On the night of September 30, 1 996, the Petitioner was told to pack his belongings and move out of the Macon 
County Health Department. At that time there was a notebook computer located in his office. 

2. This notebook computer was still located in his office the next morning, when it was specifically seen by Nancy 
Rathbone. Nancy Rathbone is employed as an Administrative Assistant at the Macon County Board of Health. 

3. This personal computer was later given to Anne Hyder, by Sam Greenwood, who was the Acting Health 
Director since the Petitioner's removal. 

4. A camcorder was kept in the Petitioner's vehicle and was used for Health Department business. Petitioner 
returned it the day after being placed on investigatory leave. 

5. The camcorder had been available to other employees of the Health Department for both personal and business 
use. 

6. Petitioner used the camcorder for personal use by filming a wedding. 
ALLEGATION #1E(3) 

1. There was evidence introduced in the course of the hearing in this case that the Petitioner was visited, on one 
occasion, at the Macon County Health Department by two people in black suits. 

2. There is no evidence whatsoever as to the identity of these individuals, or that they in any way attempted to 
collect any debt from the Petitioner herein. 

3. There are no specific allegations contained in this allegation identifying the persons, dates, or events, which are 



1494 NORTH CAROLINA REGISTER March I, 1999 13:17 



CONTESTED CASE DECISIONS 



described herein in sufficient particularity for Petitioner to adequately defend against these allegations. (See Employment Security 
Commission of North Carolina v. Wells, ibid.). 

4. There was no evidence produced during the hearing that the Petitioner conducted personal business affairs 

during regular work hours such that he was unable to cany out his functions or act in his capacity as Health Director of Macon 
County. 

ALLEGATION #1E(4) 

1. Allegation IE(4) was added by Richard Jones, Sam Greenwood, Terry Dalton, and Nancy Rathbone after the 
Board had considered the matters set forth in the dismissal letter. The Board of Health never considered anything about 
Allegation 1 E(4). did not vote to dismiss the Petitioner for this allegation, and heard no evidence regarding it. 

2. There was no competent evidence introduced during the course of the trial of this case which supports the 
allegations contained in paragraph E(4). 

3. Since the Board neither voted on nor considered this allegation, this allegation was improperly placed in the 
dismissal letter by Richard Jones, Terr>' Dalton. Sam Greenwood, and Nancy Rathbone. 

ALLEGATION #1E(5) 

1. The issue of the maintenance of personnel files for employees of the Health Department is an issue between 
county policy and state law. 

2. Pursuant to the State Personnel Act. and specifically the manual for local employees subject to the State 
Personnel Act. certain personnel records are required to be maintained in the Health Department so that the> can be checked by 
State Personnel authorities. 

3. Mrs. Martha Gouge Banks from the Regional Personnel Office for the State of North Carolina testified that the 
Macon County Health Department, so far as she knew, was in compliance with the State Law concerning the maintenance of these 
personnel records at the Health Department, and the contents thereof. They had passed each audit that had been done in respect to 
these personnel records. 

4. When Sam Greenwood took over as the County Manager in Macon County some time in August of 1996, he 
issued memorandums requiring that the county maintain complete personnel records on all persons employed in the Health 
Department. (See Petitioner's Exhibit Number 21). 

5. The Petitioner herein sought guidance from the state, and from the county in respect to where and what was 
supposed to be done with personnel records for state employees who were also county employees. (See Petitioner's E.xhibit 

Number 21 ). 

6. Some time in late August or early September of 1996 it was decided that complete records would be maintained 
in the county office, with duplicate copies maintained in the Health Department. This was in accordance with state requirements 
and county requirements also. This was also the manner in which most Health Departments dealt with personnel files, according 
to the testimony of Mrs. Martha Gouge Banks. 

7. Nancy Rathbone was in charge of maintaining Health Department personnel records. So far as she knew, all 
materials that were necessary under count) policy were maintained in these records. 

8. Between the first of September of 1996 and 30 September 1996, the Health Department and the County 
Manager's office were still working to make sure that all personnel records were properly maintained and contained all necessary 
information. 

9. The Petitioner was placed on investigatory leave on September 30, 1996. 

10. The Petitioner did not have sufficient time to detemiine whether all personnel records 
were properly maintained in both places at the time that he was placed on investigatory leave. 



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11. The Petitioner has borne his burden of proof that he did not violate county policy in any way in respect to the 

maintenance of personnel records, and, furthermore, it is clear that, if it did occur, it would be a performance related violation for 
which the Petitioner received no prior warnings, and his dismissal cannot be based upon this allegation. 

ALLEGATION #2 - ALLEGED VIOLATIONS OF STATE AND FEDERAL LAW. 

ALLEGATION #2A 

1. During the course of the Health Department expansion project, as referenced in the Findings of Fact set forth 
herein above, various invoices for payment were submitted by Eric Townson, the architect who had been selected. 

2. According to the only competent evidence produced during the course of this hearing, the invoices for these 
payments represented reasonable costs for work that had been perfomied by Townson on this expansion project, Townson 
submitted various invoices depending upon the then existing budget for the expansion operation, and his understanding of 
appropriate architectural fees based upon the cost thereof 

3. There is no competent evidence that contradicts his fees. 

4. The evidence of record is that in the western part of North Carolina, architectural fees are generally set on a 
percentage of the total overall budget for the building of a governmental unit. In the instant case, there were essentially four (4) 
different budgets: $500,000.00, $1,500,000.00. $800,000.00. and $1,008,000.00 (see Petitioner's Exhibits Nos., 30, II, 12. and 
13). 

5. The cost allowed for the project would depend upon the amount of monies allowed in the budget, and Townson 
would set a percentage rate for his fees. 

6. An initial payment of $6,000.00 was made to Townson upon the signing of the original contract with the County 
Commissioners in the sum of $500,000.00. representing a down payment on his expected fee of $40,000.00. 

7. It was known that the project would not cost $500,000.00. but that would be the county's contribution thereto. 

8. Funds were being sought from various other grants and other organizations in order to pay these costs. 

9. Both Boards knew and approved this approach. 

10. Subsequently, Townson submitted other architectural fee requests on various occasions. The initial $6,000.00 
request was not reviewed by the Petitioner herein nor was it approved by him. 

11. In the summer of 1 995, a controversy arose about Townson's fee. There was concern that his fee, as submitted 
on invoice, would exceed the amount authorized for the payment of architectural fees for the project. 

12. Petitioner went to Walter Hall, who was the County Finance Officer, duly appointed under the provisions of the 
Local Budget and Fiscal Control Act (N.C.G.S. § 159-181, et. seq.). 

13. Hall had an audit done by an independent auditor, which audit appears at Petitioner's Exhibit No. 12, an is 
delineated page D-6, which indicated that the county had allowed in their budget an overall sum of $100,000.00 for architectural 
fees. 

14. Hall had some questions concerning the fees, despite this budget item, and addressed correspondence to 
Townson seeking an explanation of the fees. (See Petitioner Exhibit #12). 

15. Hall was eventually able to obtain the explanation necessary from Townson. in writing, as evidenced by 
Petitioner's Exhibit No. 12. 

16. Hall, therefore, approved the payment of the fee. 

1 7. The Petitioner, knowing that the fees has exceeded the sum of $40,000.00, went to the County Commissioners, 
and sought approval of a fee in the amount of $56,430.00. The County Commissioners duly approved this fee, and in the fall of 



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1995, specifically in November of 1995. Townson was paid in accordance with these two procedures. (See Exhibit No. #17). 

18. Townson was paid a little in excess of $60,000.00 for the architectural work he had done on the project. 
According to Townson's expert testimony, which has not been refuted in any way by the Respondents herein, he performed a 
sufficient amount of work to justify this fee in accordance with the amounts of architectural fees normally charged in the western 
part of North Carolina for this type of project. 

19. According to Walter Hall, the County Finance Officer, the amount that Townson was paid did not exceed the 
authorized amount as set forth in the audited budget referenced herein above which was approved by the auditors for the county, 
and which appeared in the budget ordinance. 

20. Hall approved the invoice submitted by Eric Townson on May 6. 1996. It requested payment in the amount of 
$12,500.00. in accordance with the budget ordinance, and in accordance with the provisions of N.C.G.S. § 159-181. et. seq.. the 
Local Budget and Fiscal Control Act. 

21. In an audit conducted by the State of North Carolina in respect to funds paid by the County in the year 1996- 
1 997. specifically addressing whether there had been violations of the Local Budget and Fiscal Control Act and the payment of 
invoices when compared to budgeted items, the State of North Carolina did not find that the payment to Townson on May 6. 1996 
was in violation of such Act. or constituted an exception to such Act (see Respondent's Exhibit No. 13). 

22. Based upon these Findings of Fact, the Petitioner herein did not violate any responsibilities under the Local 
Budget and Fiscal Control Act. 

23. All the funds paid to Townson were paid from a WIC grant, with specific approval from the State of North 
Carolina, and the administrator who administered such funds. The county has not expended any of its funds for the payment of 
the architectural fees in this case (See Petitioner's Exhibit No. 13). 

24. There is no competent evidence that Petitioner received anything of value, commit any fraud or any willful, 
intentional or other violation in this Act as alleged. 

ALLEGATION 28 

1 . In respect to the transfer of two hundred units of fiu vaccine to the Highlands-Cashiers Hospital, the Petitioner 
entered into an arrangement with Mr. Al Byers. the CEO of Highlands-Cashiers Hospital, wherein the Health Department, as a 
public service, would provide fiu vaccine to the hospital to be administered by hospital nurses in return for the Health Department 
receiving free space, and the benefit of renovations at the old Highlands-Cashiers Hospital at no cost. 

2. This matter was brought before the Health Board, and was specifically approved by the Health Board. 

3. Macon County received something of value far in excess of the value of the fiu vaccine for the transfer of this 
flu vaccine to the Highlands-Cashiers Hospital. 

4. The flu vaccine was worth less than $500.00. The reasonable value of the rental space received by Macon 
County for free was approximately $1,200.00 per month. The renovation cost was many thousands of dollars. 

5. According to competent evidence, the transfer of services and materials to hospitals, within counties located in 
western North Carolina, in return for other services to be provided by Health Departments from those hospitals, is a normal wax, of 
doing business in that part of the state. 

6. Specific approval of the Board of Health for the transfer of these units of fiu vaccine, in return for the 
consideration received, did not constitute a violation of State Law or county policy and was an economic benefit to the Macon 
Countv Health Department. 

7. This was a reasonable arrangement entered into and approved b\ the Board of Health, vs ith the County getting 
the better part of the deal. It was a win-win arrangement for the citizens of Macon County. 

8. There was a shift in the composition of the Boards at the time Petitioner's termination letter was issued. 



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9. One or more alleged violations occurred as early as 1994. 

CONCLUSIONS OF LAW 

1 . This Court has jurisdiction over the subject matter of this action and the parties hereto. 

2. The Petitioner herein is a career state emplo>ee, who is entitled to the protections of the State Personnel Act, and 
the relevant regulations adopted by the State Personnel Commission in respect to his discharge as the Health Director in Macon 
County. 

3. Under the provisions of 25 NCAC 11.2302(a), the definition of dismissal for unsatisfactory performance of 
duties established by the State Personnel Commission is as follows: 

Unsatisfactory job performance is work related performance that fails to satisfactorily meet 
job requirements as specified in the relevant job description, work plan, or as directed by the 
management of the work unit or agency. 

In order to reflect a dismissal for unsatisfactorily performance of duties: 

An employee must receive at least two prior disciplinary actions: 

First, one or more written warnings; followed by a warning or other disciplinary action which 
notifies the emplo>ee that failure to make the required performance improvements may result 
in dismissal. 

(See 25 NCAC 11.2302(c )) 

4. Under the provisions of 25 NCAC 11.2304. dismissal for personal conduct is defined by the State Personnel 
Commission as follows: 

( 1 ) conduct for which no reasonable person should expect to receive prior warning; or 

(2) job related conduct which constitutes a violation of state or federal law; or 

(3) conviction of a felony or an offense involving moral turpitude that is 
detrimental to or impacts the employee's service to the agency; or 

(4) the willful violation to known or written work rules; or 

(5) conduct unbecoming an employee that is detrimental to the agency's service; 
or 

(6) the abuse of client(s), patient(s), student(s), or a person(s) over whom the 
employee has charge or to whom the employee has a responsibility, or of an 
animal owned or in the custody of the agency; or 

(7) falsification of an emplovment application or other emplo>Tnent 
documentation; or 

(8) insubordination which the willful failure or refusal to carr> out a reasonable 
order from an authorized supervisor. Insubordination is considered 
unacceptable personal conduct for which any level of discipline, including 
dismissal, may be imposed without prior warning; or 

(9) absence from work after all authorized leave credits and benefits have been 
exhausted. 

5. The Petitioner, in answering Chairman Ledford's question, answered it truthfully, in that he had no other loans 
from septic tank installers. The Petitioner's reply was based on his understanding of the question asked on September 1 0. 1 Q96. 



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6. Based on the record before the Court, as the County Health Director, there was nothing wrong with the 
Petitioner obtaining a copy of the Jones-Holt file. 

7. The Petitioner, based upon all the evidence presented during the course of this case, did not remove this file 
from the Building and Inspection Department at the time or place alleged. The file is presently in the Department (See Petitioner 
Exhibit Number #10). 

8. The Board of Health, in taking final action with respect to the trip to Clayton, Georgia at the September 10, 1996 
meeting, cannot again use that as a basis for his dismissal per the January 13,1 997 letter. 

9. The Court concludes, as a matter of law, that one of the allegations contained in the dismissal letter, was not 
voted on or considered by the Board. Therefore it cannot serve as a basis for the Petitioner 's dismissal; that allegation is 
Allegation Number 1E(4). 

10. In respect to Allegation Number 1 E( I ), the use of the county automobile to make a personal out-of-state trip, the 
Court concludes as a matter of law that the Board of Health met, considered that allegation, and voted to issue the Petitioner a 
reprimand for that allegation, and make him repay the county $15.00 for the use of the county automobile. This constitutes a prior 
disciplinary action under the provisions of the State Personnel Act, and the Board cannot change that disciplinary action, and use it 
as a basis for the Petitioner's dismissal at this time. 

1 1. The Petitioner made no false statements regarding loans to the Board on September 10, 1996, as alleged in the 
dismissal letter. 

12. Petitioner has proven, by a preponderance of the evidence, that he did not remove the Jones-Holt Inspection file 
from the Macon County Building and Inspection Department on February 23, 1995. Therefore that allegation cannot serve as a 
basis for his dismissal. 

13. Based upon the reasonable evidence. Petitioner's removal of files or other materials from the Health Department 
on September 30, 1996, was inadvertent, and such inadvertent removal of tiles, maps, or other information does not constitute a 
personal conduct violation under the definition set forth herein above. 

14. Although Respondent's letter of dismissal did not directly list the borrowing of money from Eric Townson, Al 
Byers, Lou Capaforte, Mrs. Neville Bryson, Annabelle Houston, and Sue Dean as reasons for Petitioner's termination, evidence 
was fully presented by each side regarding these allegations through witnesses. The Court finds that: 

(a) Borrowing money from Eric Townson was in violation of 25 NCAC 11.2304(4) and (5) and 
Article VI Section 2, Subsection A. B, C. and D of the Macon County Personnel Policy. 

(b) Borrowing money from Annabelle Houston and Sue Dean was in violations of 25 NCAC 
11.2304(4) and (5) and Article VI Section 2, Subsection A, B, C, and D of the Macon County 
Personnel Policy. 

(c) There was no violation of the Administrative Code or County Personnel Policy regarding Al 
Byers, Lou Capaforte or Mrs. Neville Bryson. 

(d) Borrowing money from James Keener was a violation of 25 NCAC II .2304(4) and (5); 
Article VI Section 2 and Article VI Section 8, Subsection A, B, C, and D of the Macon 
County Personnel Policy. 

15. The personal use of the camcorder was in violation of Macon Countv' Personnel Policy, Article VI Section 2. 

16. Petitioner has demonstrated, by the preponderance of the evidence, that he did not borrow any money from Lou 
Capaforte or Mrs. Neville Bryson. 

17. Petitioner has demonstrated, by the preponderance of the evidence, that he did not improperly remove a 
camcorder or a notebook computer from the Health Department. 

18. Petitioner has demonstrated, by the preponderance of the evidence, that he did not conduct personal business 



13:17 NORTH CAROLINA REGISTER March L 1999 1499 



CONTESTED CASE DECISIONS 



affairs during regular work hours in violation of State and County Personnel Policy. 

1 9. Petitioner has demonstrated by the preponderance of the evidence, that he did not fail to maintain or cause to be 
maintained complete personnel files in the office of the Count)- Manager, and further concludes that the Petitioner's decision to 
maintain duplicate files at the county office and the Health Department is in accordance with generally accepted practice as 
followed by Health Department in respect to the maintenance of files for local personnel who are subject to the State Personnel 
Act. 

20. Petitioner did not violate the provisions of N.C.G.S. § 159-181. et. seq.. the Local Budget Fiscal Control Act, 
by submitting for payment to the County Finance Officer an invoice submitted by Eric Townson dated May 6, 1996 requesting 
payment in the amount of $12,500.00. 

21. Petitioner has demonstrated, by the preponderance of the evidence, that payments made to Eric Townson were 
justified under the county budget, as audited, that such payments were in accordance with work performed by Eric Townson, and 
that such payments were reasonable, appropriate, and in accordance with the normal charges for services performed by architects 
in the Western part of North Carolina for similar services as performed by Eric Townson in respect to the county health 
department expansion project. 

22. Petitioner has demonstrated. b\ a preponderance of the evidence, that the transfer of the 200 units of flu vaccine 
to the Highlands-Cashiers Hospital was specifically approved by the Board of Health, that such approval was justified and 
appropriate in light of consideration received by Macon County for such transfer, which consideration far exceeded the monetary 
value of the fiu vaccine, that such was done in accordance with generally accepted procedures followed by Health Departments in 
Western North Carolina, and that such did not constitute a misuse, misapplication, or misappropriation of county funds or property 
in any way. 

Based upon the above Findings of Fact and Conclusions of Law. the undersigned makes the following 

RECOMIVI ENDED DECISION 

That the Respondent's decision to terminate the Petitioner be AFFIRMED. 

ORDER 

The Agency making the FINAL DECISION in this case is required to give each party an opportunity to file exceptions to 
the Recommended Decision and to present written arguments to the part> in the Agency who will make the Final Decision. 
N.C.G.S. § 150B-36(a). 

The Agenc\ is required by N.C.G.S. § 150B-36(b) to serve a copy of the Final Decision on all parties and to furnish a 
copy to the parties' attorney of record at the Office of Administrative Hearings. 

The Agency that will make the Final Decision in this contested case is the North Carolina State Personnel Commission. 

NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior Court of Wake County 
or in the superior court of the count\ where the person resides. The Petition for Judicial Review must be filed within (30) davs 
after the person is served with a copy of the Final Decision. N.C. Gen. Stat. § 150B-46 describes the contents of the Petition and 
requires service of the Petition on all parties. 

This the 26'" dav of Januarv. 1999. 



Sammie Chess. Jr. 
Administrative Law Judge 



1500 NORTH CAROLINA REGISTER March I, 1999 13:17 



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